Easterbrook
CHICAGO (Legal Newsline) - A federal appeals court ruled last week that bill collectors can be sued for costly, automated calls made to the wrong cell phone subscribers.
On Friday, the U.S. Court of Appeals for the Seventh Circuit affirmed the decision of the U.S. District Court for the Northern District of Illinois, Eastern Division.
At the center of the case is the federal Telephone Consumer Protection Act, the law governing the conduct of telephone solicitations and telemarketing.
In particular, the TCPA restricts the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines to send unsolicited advertisements.
The act also curtails the use of automated dialers and prerecorded messages to cell phones whose subscribers often are billed by the minute as soon as the call is answered. Routing a call to voicemail counts as answering such a call.
As the Seventh Circuit noted, an automated call to a landline phone is simply an annoyance, but the same call to a cell phone adds expense to the annoyance.
In this case, dozens of automated calls were made to two cell phone numbers, which went to voicemail, consuming minutes from the current subscribers' plans.
All of the calls were made in an effort to reach previous subscribers to the numbers, whom agreed to receive the calls.
The "bystanders" or current subscribers, Teresa Soppet and Loidy Tang, sued Enhanced Recovery Company LLC, a bill collector for AT&T, contending they never consented to receive the automated or recorded calls.
In all, Enhanced Recovery called Soppet's number 18 times and Tang's 29 times trying to reach the previous subscribers, whom provided AT&T with the cell phone numbers as a way to contact them at least three years prior.
Enhanced Recovery argues that the previous subscribers' consents to be called at the cell phone numbers remained in force even after the numbers were reassigned to Soppet and Tang.
The district court disagreed, saying that only the consent of the subscriber assigned to the cell phone number at the time of the call, or perhaps the person who answers the phone, justifies an automated or recorded call.
The court then certified the issue for interlocutory review by the Seventh Circuit.
In its 12-page opinion, the Seventh Circuit affirmed the lower court's ruling, concluding that the so-called "called party" is the cell phone number's current subscriber, not the person the debt collector is trying to reach.
"Enhanced Recovery starts with the proposition that consent is effective until revoked and infers that Customer's (or previous subscriber's) consent thus must last until Bystander, the new subscriber, revokes it. The idea that one person can revoke another's consent is odd," Chief Judge Frank H. Easterbrook wrote.
"Anyway, there can't be any long-term consent to call a given cell number, because no one -- not Customer, not Bystander, not even the phone company -- has a property right in a phone number."
Simply put, consent to call a given number must come from its current subscriber, the Seventh Circuit said.
"Enhanced Recovery implicitly acknowledges this by saying that the current subscriber can rescind any earlier consent to call cell number. But this really means that Customer's authority to give consent, and thus any consent previously given, lapses when cell number is reassigned," Easterbrook wrote.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.