Court Finds Calls to a Reassigned Wireless Number Did Not Violate the TCPA

A Massachusetts district court found a caller could reasonably rely on the previous subscriber’s consent in the instance of a reassigned wireless number.

1/10/2020 10:00 AM

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Court Finds Calls to a Reassigned Wireless Number Did Not Violate the TCPA

In Sandoe v. Boston Scientific, (Sandoe v. Boston Scientific Corporation, 2020 WL 94064, No. 18-11826-NMG (D. Mass. Jan. 8, 2020)), a health care company allegedly made two autodialed prerecorded message calls to the wrong number. The individual who originally consented to the calls by providing the number to the company ceased using the number, thereby resulting in the number being reassigned to the plaintiff. The plaintiff, not having consented to the calls, filed a putative class action suit alleging violations of the Telephone Consumer Protection Act.

The health care company moved for summary judgment, arguing it should not be held liable under the TCPA for calling the plaintiff. The health care company argued that when the company called the plaintiff’s number, it reasonably relied on the consent it previously obtained from the original subscriber. The plaintiff countered that reasonable reliance was not a valid defense under the TCPA, there was no evidence that the original subscriber had consented to company’s calls and, even if the original subscriber did consent, there was a disputed issue of material fact as to whether reliance on that consent was reasonable.

The court observed that the Federal Communications Commission previously interpreted the TCPA as creating a “one-call” safe harbor allowing callers to “reasonably rely” on prior express consent for single call to a reassigned number, but that interpretation was rejected as “arbitrary and capricious” by the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, 885 F.3d 687, 705-06 (D.C. Cir. 2018).

The instant court also noted that after the ruling of the D.C. Circuit, the FCC issued a new order explaining that the D.C. Circuit’s ruling did not question the FCC’s authority to interpret the TCPA “not to demand the impossible of callers.”

Further, the court asserted that the FCC recently established a comprehensive database with information regarding reassigned numbers, that, once operational, would allow callers to avoid liability for calling a reassigned number if the database failed to report the number as reassigned.  

Siding with the health care company, the court stated:

“Although the text of the TCPA does not provide for reasonable reliance, this Court finds persuasive the FCC’s order emphasizing that the TCPA does not require the impossible of callers. It is unclear what else, if anything, [the company] could have done to ensure the numbers of the clinic patients had not been reassigned. This Court declines to contravene the FCC’s regulation by interpreting the TCPA as requiring callers to do what the competing expert reports in this case demonstrate is either impossible, or at least highly unreliable. [The company] reasonably relied on its partner clinics to provide an invitee list of current patients who had provided their contact information for health-care-related events and services.”

Based on this analysis, the court granted the health care company’s motion for summary judgment.

ACA International is pleased with this common-sense ruling, and it should be noted that this is the second court to clearly find that a caller can reasonably rely on a previous subscriber’s consent. In Stewart L. Roark v. Credit One Bank, N.A., No. CV 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), a Minnesota district court issued a similar ruling, finding that it was reasonable for a caller to rely on a previous subscriber’s prior express consent. ACA will continue to follow this and other TCPA related issues to keep our members abreast of the current state of the law.


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

Court Finds Calls to a Reassigned Wireless Number Did Not Violate the TCPA

In Sandoe v. Boston Scientific, (Sandoe v. Boston Scientific Corporation, 2020 WL 94064, No. 18-11826-NMG (D. Mass. Jan. 8, 2020)), a health care company allegedly made two autodialed prerecorded message calls to the wrong number. The individual who originally consented to the calls by providing the number to the company ceased using the number, thereby resulting in the number being reassigned to the plaintiff. The plaintiff, not having consented to the calls, filed a putative class action suit alleging violations of the Telephone Consumer Protection Act.

The health care company moved for summary judgment, arguing it should not be held liable under the TCPA for calling the plaintiff. The health care company argued that when the company called the plaintiff’s number, it reasonably relied on the consent it previously obtained from the original subscriber. The plaintiff countered that reasonable reliance was not a valid defense under the TCPA, there was no evidence that the original subscriber had consented to company’s calls and, even if the original subscriber did consent, there was a disputed issue of material fact as to whether reliance on that consent was reasonable.

The court observed that the Federal Communications Commission previously interpreted the TCPA as creating a “one-call” safe harbor allowing callers to “reasonably rely” on prior express consent for single call to a reassigned number, but that interpretation was rejected as “arbitrary and capricious” by the U.S. Court of Appeals for the D.C. Circuit in ACA International v. FCC, 885 F.3d 687, 705-06 (D.C. Cir. 2018).

The instant court also noted that after the ruling of the D.C. Circuit, the FCC issued a new order explaining that the D.C. Circuit’s ruling did not question the FCC’s authority to interpret the TCPA “not to demand the impossible of callers.”

Further, the court asserted that the FCC recently established a comprehensive database with information regarding reassigned numbers, that, once operational, would allow callers to avoid liability for calling a reassigned number if the database failed to report the number as reassigned.  

Siding with the health care company, the court stated:

“Although the text of the TCPA does not provide for reasonable reliance, this Court finds persuasive the FCC’s order emphasizing that the TCPA does not require the impossible of callers. It is unclear what else, if anything, [the company] could have done to ensure the numbers of the clinic patients had not been reassigned. This Court declines to contravene the FCC’s regulation by interpreting the TCPA as requiring callers to do what the competing expert reports in this case demonstrate is either impossible, or at least highly unreliable. [The company] reasonably relied on its partner clinics to provide an invitee list of current patients who had provided their contact information for health-care-related events and services.”

Based on this analysis, the court granted the health care company’s motion for summary judgment.

ACA International is pleased with this common-sense ruling, and it should be noted that this is the second court to clearly find that a caller can reasonably rely on a previous subscriber’s consent. In Stewart L. Roark v. Credit One Bank, N.A., No. CV 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), a Minnesota district court issued a similar ruling, finding that it was reasonable for a caller to rely on a previous subscriber’s prior express consent. ACA will continue to follow this and other TCPA related issues to keep our members abreast of the current state of the law.


Follow ACA International on Twitter @ACAIntl and @acacollector, Facebook and request to join our LinkedIn group for news and event updates. ACA International members are welcome to submit news items for possible publication to comm@acainternational.org. Visit our publications page for news submission guidelines and subscriptions to ACA Daily, Collector magazine and Pulse.

Advertising is available for companies wishing to promote their products or services. Be sure to visit the ACA Events Calendar on the Education and Training page to view our listing of upcoming CORE Curriculum and Hot Topic seminars featuring critical educational opportunities for your company.


Subscribe to ACA Daily NEWSROOM

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