Earlier this month in Leyse v. Bank of America, another federal district court judge ruled in favor of the defendant on a key Telephone Consumer Protection Act (“TCPA”) issue – confirming that “called party” means the intended recipient of the call.
As background, the TCPA (47 U.S.C. § 227) requires callers to obtain “prior express consent” before placing certain calls made using an “automatic telephone dialing system” or a prerecorded voice message.
Since 2005, Mark Leyse and his roommate, Genevieve Dutriaux, have separately filed three putative class action TCPA lawsuits in three different jurisdictions stemming from one phone call made to Leyse’s residential telephone number. Bank of America argued in its motion to dismiss that Leyse lacked standing as the “called party” under the TCPA because uncontroverted evidence showed that Dutriaux was the intended recipient of the call (as well as the subscriber of the telephone line).
Judge Wigenton of the District of New Jersey granted Bank of America’s motion to dismiss, noting that other courts have also ruled that only the called party, as the intended recipient of the call, has standing to pursue TCPA claims. The court cited to an earlier order in one of Leyse’s lawsuits against Bank of America and held that “Leyse is not a ‘called party’” because the call was placed to Dutriaux, whereas Leyse was an unintended and incidental recipient. As the court in the earlier case noted, under Leyse’s erroneous interpretation of the TCPA, businesses could violate the TCPA if an employee or roommate, instead of the intended recipient who gave prior consent, answered the phone or picked up a fax.
Parties have also asked the FCC to confirm that callers are not liable under the TCPA for calls to telephone numbers for which they have obtained “prior express consent” but which have since been reassigned to another subscriber without the caller’s knowledge. This case provides further support for the petitioners’ position that autodialed and prerecorded calls made in good faith to unintended and incidental recipients (and after obtaining “prior express consent” to call the number) do not violate the TCPA.
Hogan Lovells has a TCPA working group that includes more than 20 litigation, FCC/communications, and privacy lawyers with substantial experience in the TCPA, and we have advised and litigated on a wide variety of TCPA issues. For more information, please visit www.hoganlovells.com/tcpa.