The Ninth Circuit Court of Appeals has upheld a lower court’s verdict against a company accused of violating the Telephone Consumer Protection Act because the phone number it was calling had been reassigned to someone other than the intended recipient of the calls, ruling that the company must have the consent of the phone’s subscriber in order to be able to call that number. Separately, the court also upheld a lower court’s ruling granting the award of attorney’s fees to the plaintiff.
Collection agencies working on behalf of the defendant made nearly 200 calls to the phone number in question, trying to reach an individual who had fallen behind on his credit card payments. But the number had been reassigned to the mother of the plaintiff, a 11-year-old, who was given the phone. The plaintiff filed suit against the agencies and the defendant. Each of the agencies settled with the plaintiff, but the defendant took the case to trial, where a jury determined the defendant had violated the TCPA and the Rosenthal Fair Debt Collection Practices Act. The lower court also granted the plaintiff’s request to have its attorney’s fees and costs covered under the RFDCPA.
The defendant attempted to argue that should not have been found to have violated the TCPA because it intended to call the individual it wanted to reach using the number the individual provided. But, like the Seventh and Eighth Circuits, the Ninth Circuit made quick work of the intended recipient argument by pointing to the fact that such a safe harbor is not included in the TCPA. The TCPA, the Ninth Circuit noted, indicates that the prior express consent of the called party is required, not the intended recipient.
“In all events, whether Credit One’s ‘intended recipient’ rule reflects the better balancing of competing interests is not for us to decide,” the Ninth Circuit wrote. “What matters here is the balance that the text of the TCPA most naturally reflects. And given the ‘called party’ language that Congress used in the TCPA, we hold that the district court’s instruction complied with the statute.”