TCPA: Due Diligence Necessary When Auto-Dialing Old Cell Phone Numbers
On May 11, 2012, the Seventh Circuit in Soppet v. Enhanced Recovery Company, LLC, 2012 U.S. App. LEXIS 9560 (7th Cir. May 11, 2012), issued an opinion illustrating the risks of using an automated dialer to place calls to a stale cell phone number.
In Soppet, the defendant was accused of making a call to a cell phone number using an automated dialer regulated by the TCPA, and that it had not received consent from the consumer who had been assigned the number. Such consent is required prior to making a lawful call to a cell phone using an auto-dialer regulated by the TCPA. The defendant, who had received consent from a prior consumer assigned the number, said it did not know that the telephone number had been reassigned.
The Seventh Circuit ruled that a consumer who owned the telephone number previously used by another consumer could bring a cause of action under the TCPA because that person did not consent to the calls. “[O]nly the consent of the subscriber assigned to that cell number at the time of the call (or perhaps the person who answers the phone) justifies an automated or recorded call.” Id. at *6.
The Seventh Circuit considered at length the definition of a “called party,” a phrase used seven times, all told, in the language of the TCPA, 47 U.S.C. § 227, et seq. Because four of these times unmistakably “denote the current subscriber … [and] one denotes whoever answers the call (usually the subscriber)[,]” a called party must refer to the current subscriber. Id. at *7-8. The defendant argues that because people are moving from landlines to cell service, it makes it riskier to use predictive dialers, which in the long run will lead to higher prices across the board. Id. at *11. The court, however, listed three options to ensure that dialers need not be abandoned due to the risk that the subscriber had changed for a given number:
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“Have a person make the first call, then switch to a predictive dialer after verifying that Cell Number still is assigned to Customer.”
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“Use a reverse lookup to identify the current subscriber to Cell Number.”
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“Ask Creditor, who obtained Customer’s consent, whether Customer still is associated with Cell Number – and get an indemnity from Creditor in case a mistake has been made (Indemnity may be automatic under ¶10 of the 2008 TCPA Order, which states that calls placed by a third-party collector on behalf of a creditor are treated as having been made by the creditor itself.)”
The Seventh Circuit’s opinion in Soppet emphasizes an important point – businesses must recognize that auto-dialing old cell phone numbers is risky. Further, Soppet counsels that businesses should use due diligence to ensure that they are contacting the intended consumer. For example, if consent is in question because of the passage of time, Soppet says that it is important to have an initial, manual call in order to obtain recorded consent from the consumer to receive calls from an auto-dialer.