TCPA Case Appeal Against Debt Buyer Addresses Express Consent on Cell Numbers

A debt buyer last week lost its appeal of a ruling in a case where a consumer is seeking class action status over claims that the ARM firm auto-dialed cell phone numbers without express prior consent. The appeals court wrote that consent is given for cell numbers only at the credit application stage of the relationship.

The U.S. Court of Appeals for the Ninth Circuit in Pasadena, Calif. affirmed a lower court decision granting an injunction to the consumer and provisional class action status to his lawsuit.

The case, Meyer v. Portfolio Recovery Associates, explored whether the debt buyer was allowed to use an automated dialer to contact cell phone numbers it obtained in the skip tracing process. A district judge said that the company was not allowed, and issued a preliminary injunction against the process. The judge also granted Meyer’s suit provisional class certification.

In writing their decision, the three-judge appellate panel used language from a declaratory ruling issued by the FCC in 2008 as justification for determining whether a consumer has given express prior consent to reach them on a cell number under the Telephone Consumer Protection Act (TCPA). The language states that consent is considered given only when a consumer provides the cell number at the time of transaction:

The Federal Communications Commission (FCC) issued a declaratory ruling clarifying the requirement for consent in the context of the TCPA that defeats PRA’s argument. Pursuant to the FCC ruling, prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue. Thus, consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.

The company also argued that the specific consumer might not be eligible for lead class representative due to prior convictions for “deceptive conduct.” But the appellate opinion (PDF file:  Meyer-v-PRA-appeal) noted that the convictions were a long time ago and that the consumer had “since taken positive steps in his life.”

The district court did consider PRA’s argument that Meyer’s criminal record included convictions for deceptive conduct, but it also considered that Meyer’s convictions were from 1998 and 2001, more than 10 years ago, and that Meyer had since taken positive steps in his life, including his graduation from the University of California. On this record we cannot say the district court abused its discretion by accepting Meyer as a provisional class representative.

The case was argued on May 10 in Pasadena before a panel comprised of circuit judges Dorothy W. Nelson, Raymond C. Fisher, and Morgan Christen.

Editor’s Note: Do you have questions about this case as it relates to debt collection? Sign up for insideARM’s first Ask the Attorney session on Thursday, October 25 to submit this question to a panel of ARM experts.