Consumer Protection – TCPA — automated dialers

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United States Court of Appeals For the Seventh Circuit

Civil

Consumer Protection – TCPA — automated dialers

The Telephone Consumer Protection Act applies to automated dialers and prerecorded messages to cell phones.

“The phrase ‘intended recipient’ does not appear anywhere in §227, so what justification could there be for equating ‘called party’ with ‘intended recipient of the call’? (Section 227(b)(1) does use the word ‘recipient’ in a context where ‘recipient’ means ‘current subscriber’; this doesn’t remotely suggest that ‘called party’ must mean ‘intended recipient.’) Enhanced Recovery starts with the proposition that consent is effective until revoked and infers that Customer’s consent thus must last until Bystander, the new subscriber, revokes it. The idea that one person can revoke another’s consent is odd. Anyway, there can’t be any long-term consent to call a given Cell Number, because no one—not Customer, not Bystander, not even the phone company—has a property right in a phone number. See Jahn v. 1-800- FLOWERS.com, Inc., 284 F.3d 807 (7th Cir. 2002). Consent to call a given number must come from its current subscriber. Enhanced Recovery implicitly acknowledges this by saying that the current subscriber can rescind any earlier consent to call Cell Number. But this really means that Customer’s authority to give consent, and thus any consent previously given, lapses when Cell Number is reassigned.”

Affirmed.

11-3819 Soppet v. Enhanced Recovery Co., LLC

Appeal from the United States District Court for the Northern District of Illinois, Kennelly, J., Easterbrook, J.