Recent Appellate Decisions Clarify Meaning of 'Called Party' in the TCPA

The Telephone Consumer Protection Act (TCPA) prohibits certain calls made to mobile phones using automated telephone dialing systems.1 However, companies are permitted to place automated calls to cellular phones if they have the "prior express consent of the called party."2 Unfortunately, the TCPA does not define the term "called party," and recent decisions have broadened the term in ways that present potential dangers for companies using automated telephone campaigns. The Eleventh Circuit's recent decision in Breslow v. Wells Fargo Corp.3 adds to this growing body of law.

Although the term "called party" appears clear at first, certain circumstances can muddy the water. For example: A phone number may be reassigned to a new user between the time that the original owner gives consent and the time that the potentially problematic call is placed. Or, the phone number may belong to the same person who gave consent, but a different person may answer the call. Or, the person giving consent may never have owned the cell phone number at all, but rather have given the number through mistake or intentionally trying to mislead the company. The problem in each case is clear: callers will be trying to reach the person who gave consent, but someone else will answer the phone, and it is unclear whether the "called party" is the intended recipient or the actual recipient of the call.

In Breslow, the Eleventh Circuit confronted one such situation, as Wells Fargo used an automated system in an attempt to contact a delinquent account holder's specified telephone number. However, that number had been re-assigned to a different person, Ms. Breslow.4 Based on this call, Ms. Breslow brought suit under the TCPA on her own behalf and on behalf of her minor child, who was the primary user of the phone. The Eleventh Circuit affirmed a district court's entry of summary judgment in favor of Ms. Breslow, concluding that the former owner's consent was irrelevant because, according to the court, the term "called party" "means the subscriber to the cell phone service or user of the cell phone called."5

The Breslow decision is just one of a growing body of cases raising concerns for users of automated calling systems. In Soppet v. Enhanced Recovery Company, LLC,6 the Seventh Circuit also addressed a TCPA claim involving the transfer of a phone number to a new owner after consent was given by the prior owner. The Soppet court reached the same result as Breslow, while also...