August 2008 : When Does "Express" REALLY Mean "Express"?
by Joseph Sanscrainte, an attorney with Bryan Cave, LLP, specializing in telemarketing law.
When last we visited this issue, the FCC had provided an interpretation of the following language (from its regulations implementing the Telephone Consumer Protection Act (TCPA)):
>No person or entity may initiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system . . . (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 47 CFR 64.1200(a)(1) (emphasis added.)
In response to a petition filed by ACA International, the FCC ruled that autodialed (and prerecorded) calls to wireless numbers "that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ?prior express consent' of the called party."The FCC concluded that under these circumstances: 1) the consumer has "knowingly released"his/her phone number; and 2) the call being made by a debt collector is part of "normal business communications."The combination of these two factors, at least in the context of debt collection calls, amounts to (at least according to the FCC) "prior express consent."
Enter the United States District Court for the Northern District of California. On May 20th, 2008, this Court issued a preliminary decision regarding the case of Leckler v. Cashcall, wherein Tricia Leckler had sued Cashcall for making debt collection calls to her cell phone using an autodialer and prerecorded messages without her consent. Both parties had moved for partial summary judgment on the question of whether Cashcall violated the TCPA when it placed telephone calls to Ms. Leckler's cell phone number using an automatic dialing system and prerecorded messages. The Court recognized that its answer to this question hinged on the propriety of the FCC's January 2008 ruling.
The Court pointedly did NOT accept the propriety of the FCC's ruling, finding instead that the FCC's construction of prior express consent was both "manifestly contrary to the [TCPA] and unreasonable, because it impermissibly amended the TCPA to provide an exemption for ... 'implied' consent and flew in the face of Congress' intent."