The Seventh Circuit recently ruled that “called party” in the Telephone Consumer Protection Act (TCPA) means the current subscriber to a cell phone number.  Thus, a business cannot rely on the express consent of the prior subscriber to call that  cell phone number under the TCPA.  In short, a business faces potential TCPA liability if they call a cell phone number without verifying that the person who gave initial consent remains the subscriber of the cell phone number.

On May 11, 2012, in  Soppet v. Enhanced Recovery Company, LLC (11-3819, 7th Cir.), Judge Easterbrook held “that ‘called party’ in § 227(b)(1) [of the TCPA] means the person subscribing to the called number at the time the call is made.”  He reasoned that the TCPA’s use of “called party” consistently as the current subscriber of the cell phone number meant that a caller must have the prior express consent of the current subscriber and could not rely on the consent of the previous subscriber of the cell phone number.  Under this ruling, a business faces potential TCPA liability if the business makes a call to the new subscriber relying on the express consent of the prior subscriber.  Interestingly, Judge Easterbrook also reasoned that there cannot be any long-term consent to contact any cell phone number, because no one has a property right in a phone number. 

The opinion is available here.

For further information, contact Michael B. Hazzard or Jason A. Koslofsky or any of our attorneys in the Telecomm Group.