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Ninth Circuit Clarifies TCPA Ruling, Denies Rehearing

Wednesday, January 9, 2013

The U.S. Court of Appeals for the Ninth Circuit Dec. 28 denied panel and en banc rehearing in a case exploring whether so-called skip-tracing is covered by the Telephone Consumer Protection Act, 47 U.S.C. § 227 (Meyer v. Portfolio Recovery Associates LLC, 9th Cir., No. 11-56600, 12/28/12).

The TCPA makes it unlawful for any person to use an “automatic telephone dialing system” to call cellphone numbers. Skip-tracing is the process of developing new telephone, address, job, or asset information, or verifying the accuracy of that information. In October, the Ninth Circuit upheld a district court's preliminary injunction barring a debt collector from using an autodialer to place calls to cellphone numbers it developed through skip-tracing and upheld the district court's provisional class certification in the case ( 696 F.3d 943 (9th Cir. 2012)). In that opinion, the circuit court rejected the debt collector's argument that individualized issues of consent precluded class certification. In the amended opinion, the court noted that the debt collector “did not show a single instance where express consent was given before the call was placed.”

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