We love us some Jim Croce here at Venable and his 1972 ballad, Operator (That’s Not the Way It Feels), is resonating with us right now. In Operator, Croce sings about a man confessing to an operator about his love for an ex-girlfriend. He needs the operator’s help to find a telephone number for his ex, as she’s moved on and she is no longer at the number he has for her. Ironically, if the heartbroken man were to leave a message for his lost love at her old telephone number, well, the Telephone Consumer Protection Act (“TCPA”) plaintiffs’ bar might be all over it and allege a violation of the Act for leaving a prerecorded message without the consent of the new owner of that number. Silly? Yes. Possible? Also yes. However, a recent decision out of the U.S. District Court for District of Minnesota – the first of its kind as far as we are aware – gives a bit of security to industry. There, the court applied a “reasonable reliance” test to determine whether a caller could be liable for leaving a prerecorded message for the wrong person when the previous owner of the telephone number had provided his prior express consent to receive calls at that number.
In Stewart L. Roark v. Credit One Bank, N.A., No. 16-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018), defendant Credit One Bank placed 140 collection calls to the plaintiff’s cell phone over a three-month period; in four of those calls, the bank left a prerecorded message in the plaintiff’s voicemail box. Credit One, however, was seeking to reach the account holder, rather than the plaintiff. Unbeknownst to Credit One, the account holder, for whom the bank had appropriate TCPA consent, had changed telephone numbers, with his former number being reassigned to the plaintiff. The bank had no relationship with the plaintiff. When the plaintiff finally informed Credit One that he was not the individual whom the bank was trying to reach, the bank immediately added the number to its internal do-not-call list and placed no more calls to him. Nonetheless, the plaintiff alleged that Credit One violated the TCPA.
After rejecting the Ninth Circuit’s September 2018 decision in Marks v. Crunch San Diego, LLC, and finding that Credit One’s calling platform was not an autodialer because it did not have the “actual capacity” itself to generate random or sequential numbers to dial – rather, the platform merely called from a list of specific and targeted telephone numbers selected by the bank – the court addressed the plaintiff’s alternative theory of liability for the four prerecorded messages that Credit One left on his cell phone. The court adopted a “reasonable reliance” test for alleged TCPA violations involving reassigned numbers, citing the D.C. Circuit’s recent rejection of the FCC’s “treatment of reassigned numbers as whole” in ACA International v. FCC. Setting aside the FCC’s “one-call safe harbor” test, the Minnesota court considered the “reasonableness of the caller’s reliance on a prior number holder’s express consent.” In a straightforward analysis, the court explained:
Credit One had express consent from R.B. [its customer] to call him at the number he provided, including consent to call him with prerecorded messages. Credit One had no reason to know that the phone number had been reassigned because they received no notice from [the plaintiff] and the caller I.D. for the number still populated with R.B.’s information. It was reasonable for Credit One to rely on R.B.’s prior express consent to call his number, and therefore summary judgment on this issue is proper.
To the District of Minnesota, on behalf of business callers everywhere (and Jim Croce), “[t]hank you for your time, you’ve been so much more than kind. And you can keep the dime . . .”
We’ll keep you updated on future developments with respect to reassigned numbers and other hot TCPA issues.