The last several years have seen a jump in the number of claims brought against businesses under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227.  Among other things, this statute bars businesses and debt collectors from using automatic telephone dialing systems to call a consumer’s cell phone without their express consent.  The increase in TCPA claims has largely been driven by the proliferation of cellular telephones in everyday life and the statute’s stiff damages provision.  The increase in litigation, however, has also raised a number of questions about how this relatively new federal consumer statute is to be applied. test pdf

On March 28, 2014, the U.S. Eleventh Circuit Court of Appeals issued a significant opinion regarding the scope of the TCPA.  In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. 2014), see opinion here ,the court resolved three questions concerning application of the statute that have divided the lower courts, deciding each question in favor of the consumer and against defendant State Farm Bank.

First, the Court addressed who must “consent” in order for a call to a cellular telephone to be authorized under the TCPA.  This issue comes up frequently in TCPA cases where a business has called a cellular telephone that belongs to someone other than the person who gave that number to the business, such as may be the case with a husband and wife.  Many businesses have argued that consent is established under the TCPA if the “intended recipient” had “authorized” calls to a cellular telephone number, even where the actual owner and recipient of the call had not.  See Meadows v. Franklin Collection Service, Inc., 414 F.Appx. 230 (11th Cir. 2011)(per curiam).  In Osorio, the Court rejected that argument.  It held that the actual owner of the cellular telephone number must be the one to consent.

Second, the Court addressed whether a consumer may revoke their “consent” to be called on their cellular telephone.  The lowers courts have been divided on this question.  Some courts have held that a consumer can never revoke their consent.  Others have held that consumers could revoke their consent, but only in writing.  Finally, some courts have said that oral revocation by the recipient of the call is sufficient.  In Osorio, the Eleventh Circuit agreed with this last position, holding that a consumer’s oral instruction to stop calling a cell phone is sufficient.  In that case, the recipient of the telephone calls had testified he orally instructed the business to stop calling his cell phone on two occasions.  The Court held this was sufficient to create a fact question on the issue of revocation of consent.

Finally, the Eleventh Circuit rejected the argument that only a consumers who must pay a separate charge for the unauthorized call(s) to their cellular telephone could sue under the TCPA.  Businesses have argued that a separate charge is a prerequisite for a consumer to have standing under the TCPA, citing to both statutory language and to Federal Communication Commission regulations.  The court rejected this argument, holding that the plain language of the statute prohibits calls to cellular telephones even where the recipient of the call has not paid an additional charge.

The Eleventh Circuit’s ruling in Osorio will do nothing to stem the tide of TCPA litigation in Alabama, Florida, and Georgia.  In fact, it will most likely lead to an increase in such claims.  In order to avoid being subject to TCPA claims, businesses may wish to consider adopting a policy of only requesting the cellular telephone numbers owned by their customer, and not any of their family members.  Further, businesses may wish to consider adopting clear procedures for responding to oral requests by consumers to discontinue calling a particular cellular number.