Secret Limitation?: Court Denies Summary Judgment to TCPA Defendant Who Couldn’t Prove Customer Had Full Authority to Provide Number
TCPA defendants have enough to deal with without having to worry about secret limitations on their ability to call phone numbers supplied by customers. But, oh well!
In Benedetti v. Charter Communications, No.1:16-CV-2083 RLM-DLP, 2018 WL 2970998 (S.D. Ind. June 13, 2018) a customer supplied his nanny’s phone number to the Defendant in connection with his account. After the account went delinquent the Defendant began calling the phone number in an effort to collect. The nanny sued under the TCPA contending that the calls had been made to her without her express consent.
Charter sought summary judgment in the case arguing that it had permission to call the number supplied by its customer. Importantly, the nanny had admitted in deposition that she had given permission to the customer to provide the phone number to Charter. Thus, Charter argued, under the FCC’s presumed consent rule it had permission to make the informational calls at issue.
The Court disagreed. The nanny had testified that she only gave the customer permission to supply the phone number to Charter for a limited purpose–specifically for setting up the cable service and for troubleshooting if it was on the fritz. Because the record was barren respecting what the customer had actually told Charter in providing the phone number, the Court concluded that a jury might find that the customer told Charter that it could only call the number for those limited purposes. If that was the case, then the scope of consent would not have be broad enough to encompass debt collection calls. So summary judgment was denied.
Although the issue of what the customer did or did not say to Charter is obviously speculative given the poorly-developed record, the Court found that it was Charter’s job to prove the negative–i.e. that the customer didn’t tell it to call the number for a limited purpose. That’s always fun.
The take away here is that a caller receiving a third-party’s phone number from a customer must always be cautious for secret limitations imposed by the third-party. Absent documentation that the customer did not provide additional instruction related to the scope of consent, the third-party may sue the caller on the theory that the customer had exceeded the scope of his or her consent in providing the number to the caller. While a counterclaim would likely exist against the overreaching customer, that is of little comfort.
Of course if the customer never even reveals that the number belongs to a third-party in the first place things get even trickier. All the more reason to see the FCC adopt the “expected recipient” approach in defining the phrase “called party.” Keep your fingers crossed.