SAN FRANCISCO–The nearly 200 automated phone calls made to the cell phone of an 11-year-old boy by a bank violated the Telephone Consumer Protection Act (TCPA), according to a ruling from U.S. Court of Appeals for the Ninth Circuit.
The panel of judges, who ruled unanimously in the case, upheld the judgement of an earlier jury trial.
In the case defendant Credit One Bank made the automated calls to the boy’s cell phone attempting to collect past-due payments from a customer, but the customer’s cell phone number had been reassigned to the boy’s mother, who let him use it has her own. The customer had given consent to be called, but the boy and his mother had not. In all, 189 calls were made to the boy’s cell phone as part of the payments collection effort over a four-month period.
Agreement With Other Circuits
In its ruling, the court noted the TCPA exempts from liability automated calls made with the “prior express consent of the called party.” Agreeing with other circuits, the panel held that the consent of the person it intended to call did not exempt Credit One from liability under the TCPA. Accordingly, the district court properly instructed the jury that consent from the intended recipient of the call was not sufficient, the three judge panel ruled.
The boy was the plaintiff in the suit and alleged that Credit One violated the Telephone Consumer Protection Act (TCPA), which makes it unlawful to call a cell phone “using any automatic telephone dialing system,” or ATDS, without the “prior express consent of the called party.”
The court noted that the boy received up to eight calls per day, including two calls within a minute of each other. The calls were made by a vendor the bank retained to pursue collections.
“The principal question in this case is whether Credit One can escape liability under the TCPA because the party it intended to call (its customer) had given consent to be called, even though the party it actually called had not. Consistent with every circuit to have addressed this issue, we hold that this argument fails under the TCPA’s text, most naturally read,” the court ruled. “Credit One is therefore liable under the TCPA for its calls to (the boy). We affirm the district court in this and all respects.”
Fine Levied
In the earlier jury trial, the boy was awarded $500 in statutory damages for each of the 189 unwanted calls, for a total of $94,500. The jury also found for the boy on his Rosenthal Act claim, awarding him $1,000 in statutory damages but no actual damages. The jury found for Credit One on N.L.’s invasion of privacy claim. Credit One timely appealed the judgment.
The full ruling can be found here.