Keywords: telephone consumer protection act, TCPA, automated calls, reassigned numbers, statutory damages, unsolicited calls

In a case with potentially wide-ranging implications for compliance with the Telephone Consumer Protection Act (TCPA), the US Court of Appeals for the Seventh Circuit has held that an entity that places an automated call to a reassigned number without the prior express consent of the new recipient is liable for statutory damages even if the previous subscriber with that number had consented to the automated calls.

In Soppet v. Enhanced Recovery Co., __ F.3d __, 2012 WL 1650485 (7th Cir. May 11, 2012), two consumers with overdue bills had consented to receive automated calls on their mobile phones, but then changed phone numbers. As a result, when a collection agency used a predictive dialer to attempt to contact the consumers at the provided numbers, the calls instead were received by the new subscribers to whom those mobile phone numbers had been reassigned. The recipients of the calls then filed a class action against the collection agency, seeking statutory damages under the TCPA for each call on the ground that they were unsolicited automated calls. The collection agency unsuccessfully sought summary judgment on the ground that the intended recipients of the calls had consented to receiving automated calls.

On appeal, the Seventh Circuit affirmed the district court's ruling that the consent of the intended targets of automated calls did not shield the collection agency from liability under the TCPA to the actual recipients of the calls. The Seventh Circuit reasoned that its holding follows from the language of the TCPA, which consistently uses the phrase "called party" to refer to the actual rather than the intended recipient of the call.

The Seventh Circuit's decision in Soppet is of enormous significance to companies subject to the TCPA, especially to companies that use predictive dialers or other automated-call systems to contact consumers. Under Soppet, companies must ensure that the actual recipients of automated calls have consented to receiving them, and take steps to update their records when telephone numbers have been reassigned to new subscribers. For example, the Seventh Circuit noted that callers could avoid liability by doing a "reverse lookup to identify the current subscriber" or by "hav[ing] a person make the first call" to verify that the number is

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