Appeals Court Updates 'Express Consent' in TCPA Case Decision Revision

In the last week of 2012, the Ninth Circuit Court of Appeals updated its own opinion in a Telephone Consumer Protection Act (TCPA) case in which it ruled against a debt buyer. Although the court did not ultimately change its decision, it backed away from its previous very narrow reading of “express consent” for the use of autodialers to call cell numbers.

The U.S. Court of Appeals for the Ninth Circuit in Pasadena, Calif. in October 2012 affirmed a lower court decision granting an injunction to the consumer and provisional class action status to his lawsuit. The case, Meyer v. Portfolio Recovery Associates, explored whether the debt buyer was allowed to use an automated dialer to contact cell phone numbers it obtained in the skip tracing process.

In that decision, the appellate panel wrote that:

“…prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue. Thus, consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.”

But in an update issued on December 28, 2012, the Court toned down that language, specifically replacing it with:

“…prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed.”

The original language was thought to be particularly burdensome by ARM legal experts.

The new language still places a burden on ARM companies looking to auto-dial mobile numbers. For example, if a consumer lives in a cellphone-only household, attaining consent to call that number would be difficult. But there is at least a path to express consent beyond what is given at the time of credit extension.

The revision did not help defendant Portfolio Recovery in the case since the Court still found that the company was calling cell numbers attained through skip tracing and thus not eligible for consent before placing the call.