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District Court Holds Under Telephone Consumer Protection Act ''Called Party'' Is Act(1)

Thursday, September 8, 2011

John Haley | Bloomberg LawSoppet v. Enhanced Recovery Corp., No. 10-CV-05469 (N.D. Ill. Aug. 21, 2011) The U.S. District Court for the Eastern District of Illinois held that under the Telephone Consumer Protection Act ("TCPA"), a "called party" is the actual recipient of the call, and therefore denied a defendant's motion for summary judgment on the basis that it had consent to call from the person it intended to call. The court also held that a person has standing to sue under the TCPA even if she is not a called party under the TCPA.

Plaintiffs Claimed Automated Calls to Their Cell Phones

The court assumed all facts in favor of the plaintiffs for the purposes of the defendant's motion for summary judgment. According to the court, AT&T believing two of its customers were in debt to it, hired defendant Enhanced Recovery Corp., ("ERC") to collect the debts. The customers had given AT&T telephone numbers as contact information, and AT&T gave the numbers to ERC. Plaintiffs Teresa Soppet and Loidy Tang had cell phone numbers which were identical to the numbers given by the customers to AT&T. ERC called Soppet and Tang's numbers many times using an automated or predictive dialing system and left several prerecorded messages addressed to the customers. The TCPA makes it illegal to call a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice without prior consent. See 47 U.S.C. § 227(b)(1). Soppet and Tang sued ERC for violating the TCPA.

Plaintiffs Have Standing Even If Not Called Parties

ERC moved for summary judgment, claiming that Soppet and Tang lacked standing to sue under the TCPA because they were not the "called parties." The court rejected this claim, finding that although the TCPA contains the term "called party," it is only in reference to a possible defense claim of consent to receive calls. The court therefore held that whether a person meets the definition of a called party is not a limitation on whether the person can sue for a violation of the TCPA. The court held that the "plain language" of the TCPA makes it clear that any recipient of a call has standing to sue under the TCPA. Soppet at 2.

Called Parties Is Actual Recipient

ERC also claimed that summary judgment in its favor was appropriate because it had consent to make the phone calls. Calls "made with the prior express consent of the called party" are exempt from the prohibition on making calls using automated telephone equipment. 47 U.S.C. § 227(b)(1)(A). ERC did not claim it received consent from the plaintiffs, but from the AT&T customers ERC intended to call. ERC argued that the term "called party" refers to the party that the caller intended to call. Soppet and Tang contended that the term "called party" refers to the person who actually received the call. The court assumed that ERC had prior express consent from the AT&T customers but not from the plaintiffs. The court noted that the TCPA does not contain an express definition of the term "called party," but that the TCPA instructs the Federal Communications Commission ("FCC") to write regulations requiring systems which use artificial or prerecorded voice messages to:
automatically release the called party's line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls.
Soppet at 3 (quoting 47 U.S.C. § 227(d)(3)). (Emphasis added by the court). The court found that this reference to a "called party" in the statute, requiring the FCC to establish a standard that would require release of the call recipient's line under particular circumstances, "is a clear reference to the actual recipient of a call." Id. The court concluded that the term "called party" refers to the actual recipient of a call, in both Sections 227(b)(1) and 227(d)(3) of the TCPA. The court therefore held that under the TCPA, a "called party" means the actual recipient of the call. The court found that the plaintiffs were called parties, and therefore the ERC did not demonstrate consent and was not entitled to summary judgment in its favor. Disclaimer This document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy. ©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.

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