Eleventh Circuit Defines “Called Party” for Purposes of the TCPA

By: Manuel S. Hiraldo

In recent opinions, the United States Court of Appeal for the Eleventh Circuit addressed an issue of first impression in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (issued on March 28, 2014) and Breslow v. Wells Fargo Bank, N.A., Case No. 1:11-cv-22681 (11th Cir. 2014) (issued on June 9, 2014). In both cases, the Eleventh Circuit held that the term “called party” as used in the Telephone Consumer Protection Act, 47 U.S.C. § 227, refers to the subscriber of a cellular telephone number, and not the individual whom the caller intended to call. Prior to these opinions, the only federal appellate court that had ruled on the issue was the Seventh Circuit. See Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 640 (7th Cir. 2012). In Osorio and Breslow, the Eleventh Circuit followed the Seventh Circuit’s reasoning that the TCPA consistently uses the term “called party” to mean the subscriber of the telephone number.

In part, the TCPA makes it unlawful for any person

(A) to make any call…using any automatic telephone dialing system or an artificial or prerecorded voice—
. . .
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .

47 U.S.C. § 227(b)(1) (emphasis supplied).

In Osorio, Clara Betancourt provided the cellular telephone number of Fredy Osorio in connection with auto insurance and credit card applications. 746 F.3d at 1242. Betancourt subsequently defaulted on her credit card payments, which caused State Farm to attempt to contact her on the cell number provided by Betancourt. Osorio, the subscriber of the number provided by Betancourt to State Farm, sued State Farm for violating the TCPA as a result of State Farm’s use of an autodialer to contact Osorio’s cellular telephone without his consent. On summary judgment, State Farm argued that the “called party” should be interpreted to be the “intended recipient” (Betancourt) under the TCPA. “This would mean that Betancourt, as the intended recipient of State Farm’s calls, could consent to Osorio receiving the calls…” Id. at 1250. In rejecting Wells Fargo’s argument, the Eleventh Circuit held that the “called party” referred to under section 227(b)(1)(A) is not the “intended recipient.” Id.

In Breslow, Wells Fargo made calls to a cellular phone assigned to Lynn Breslow using an autodialer. Case No. 1:11-cv-22681. Breslow did not consent to Wells Fargo’s calls and she sued for alleged violations of the TCPA. Wells Fargo believed it was contacting a customer who had previously provided the number as contact number. In an affidavit filed in support of a motion for summary judgment, Wells Fargo stated that it “was unaware that the cell phone number was no longer assigned to the former customer and that the former customer never revoked his consent. . . .” Wells Fargo argued that the intended recipient of the calls (the former customer) was the “called party,” and it had therefore not violated the TCPA, because it had consent from the former customer. In rejecting this argument, and consistent with its ruling in Osorio, the Eleventh Circuit held that the “called party” for purposes of the TCPA “means the subscriber to the cell phone service.”

In all, these cases are consistent with prior interpretations of the TCPA by the Eleventh Circuit as a strict-liability statute that imposes a $500.00 per call penalty for violations, and places the burden on callers to ensure that they do not violate the TCPA. Financial institutions that utilize autodialers to contact their customers should be aware of these recent cases and this developing area of the law. Pursuant to Osorio and Breslow, an error attributable to the customer may not be a defense.

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