- June 17, 2011
- Posted by: Seth Heyman
- Category: Marketing & Advertising Law
In three separate cases filed under the Telephone Consumer Protection Act (TCPA), one federal appeals court and two district courts recently held that companies that use autodialing equipment to contact consumers who reach someone other than the intended recipient of the call can nevertheless rely on the TCPA’s statutory exemptions to the general prohibition against the use of autodialers that depend on the relationship between the company and the person it is attempting to call.
This is great news for telemarketing companies that may not always be in a position to know when someone’s phone number is incorrect or has been reassigned, particularly when automated calls are placed to cell phones, where the federal prohibitions against such practices are the narrowest.
In other words, if a company is relying on a particular exemption against autodialed calls (i.e., express written consent), and in good faith attempts to reach the person who provided that consent, it will not necessarily be held liable for dialing the wrong number. While these are TCPA cases, the three decisions involved debt collection calls, and not sales solicitations.
The cases are Anderson v. AFNI, Inc., decided by a district court in Pennsylvania, Meadows v. Franklin Collection Service, Inc., filed in the Eleventh Circuit, and Santino v. NCO Financial Systems, Inc., which was decided by a district court in New York. All three decisions were made in the context of debt collection calls, rather than telemarketing calls intended to sell goods or services. They were also decided under the FCC’s interpretation of the prohibition against autodialers, rather than that implemented by the FTC (the FCC still permits autodialed calls under the Existing Business Relationship exemption, and the FTC requires express consent of the person called).
However, because authority was initially split on the question of whether the intent of the caller should be considered a factor in imposing liability, the precedent set by these three cases should extend to non-debt-collection calls that fall within exemptions to the autodialer prohibition.
What does all this mean? This line of cases gives telemarketers a strong defense against state and federal agency enforcement when they accidentally place a call to the wrong recipient, and an even stronger defense against consumer plaintiffs who rely upon the private right of action and statutory damages provisions of the TCPA to extract nuisance settlements.