The Federal Communications Commission’s 2015 Declaratory Ruling and Order suggests that Telephone Consumer Protection Act defendants may initiate legal action against third-party customers who fail to provide notice regarding reassigned telephone numbers. A recent court case sheds light on the issue, and telemarketers should pay attention to how the dust settles.
The plaintiff in the matter of Ellington v. First Premier Bank (M.D. Tenn. Jun. 26, 2017) alleges that the defendant called his cellular telephone number using an automated telephone dialing system without lawful consent.
Interestingly, First Premier Bank subsequently filed a third-party complaint against Ms. Cassandra Whitaker, alleging that she submitted an online application to obtain a credit card from First Premier and, as part of the application, that she provided the telephone number. According to First Premier Bank, Ms. Whitaker represented the telephone number to be a business telephone number and that the former was lawfully permitted to call it to discuss her account, including for purposes of seeking collection of past due amounts.
As alleged by First Premier Bank, Ms. Whitaker represented that it could phone any telephone number she provided to it via an automatic telephonic dialing system.
As a direct result of Ms. Whitaker’s Application, according to First Premier Bank, it entered into a credit card agreement with Ms. Whitaker wherein she agreed that First Premier Bank “may call or contact [her] at any cellular, mobile, home, work, or other telephone number . . .you provide or use to contact us . . . [through] an automatic telephone dialing system, artificial voice or prerecorded message, or any other technology, even if you incur a cost when we contact you.”
As set forth in the third-party complaint, Ms. Whitaker defaulted on her payments and First Premier Bank sought to collect via the placement of telephone calls.
Plaintiff alleges that the calls were made to his cellular telephone number, in violation of the TCPA. Specifically, the plaintiff alleges that the number Ms. Whitaker represented as her own, and a number that First Premier Bank could call, in fact belongs to plaintiff.
To the extent the plaintiff seeks to hold First Premier Bank liable under the TCPA, First Premier Bank seeks common law indemnification from Ms. Whitaker.
First Premier Bank also seeks to hold Ms. Whitaker liable for breach of contract, negligent misrepresentation, and fraudulent misrepresentation for the amount of any judgment the plaintiff obtains against First Premier Bank because Ms. Whitaker allegedly represented to First Premier Bank that the number belonged to her and that First Premier Bank was authorized to call her on that number through an automated telephone dialing system to discuss matters relating to the underlying agreement.
The FCC’s 2015 Declaratory Ruling and Order discussed the reassigned number issue, finding that “the TCPA requires the consent not of the intended recipient of a call, but of the current subscriber [or customary user of the phone].” Thus, if a telephone number provided by a prior customer is reassigned, attempting to call that prior user can be a violation of the TCPA regardless of whether the caller has knowledge of the reassignment. For telemarketers, this presents risks.
The District of Columbia Circuit Court of Appeals’ decision pertaining to the controversial Declaratory Ruling and Order is currently pending and may significantly impact the scope of the TCPA
Contact an FTC defense lawyer if you would like to discuss telemarketing compliance considerations, or if you are the subject of a local, state attorney general, or federal regulatory matter.