Advertising Law Blog

A federal appeals court affirmed that companies using automated dialers can be sued for calling a telephone number, even if they had permission to call the number from the prior subscriber to that phone number. The consent must come from the current subscriber.

Given the turnover rate in cell phone numbers, the ruling makes using automated dialing devices more risky because this decision makes it clear that if a new subscriber receives an auto-dialed call on his or her cell phone, there is exposure to a class action lawsuit.

In the case of Soppet v. Enhanced Recovery Systems, the Seventh Circuit Court of Appeals affirmed a lower court's rulings that certified a class of plaintiffs under the Telephone Consumer Protection Act (TCPA) even though the caller obtained permission from the prior subscribers of the two phone numbers now belonging to the women who filed the lawsuit. A customer's authority to give consent, and thus any consent previously given, lapses when a cell number is reassigned, according to the decision issued on May 11, 2012.

The court suggested three options to reduce the likelihood of calls to a reassigned number:

• Have a live person make the first call to the number (the TCPA is limited to automated calls, human callers render auto-dialed calls legal), then switch to a predictive dialer after verifying that cell number still is assigned to the same subscriber who consented to receive the calls.
• Use a reverse lookup to identify the current subscriber.
• If the caller is not the person who got the subscriber's consent, it can obtain indemnification that the consent is valid from the party who did obtain the consent, in case any mistakes have been made.

TAKE AWAY: Since consent must be obtained from the current subscriber and telephone numbers are often reassigned, anyone making auto-dialed calls cannot rely on aging consents. The court suggested several methods to reduce the risk of calling a reassigned number, and companies are well-advised to use one of the court's methods (or come up with one their own) to ensure the currency of a subscriber's consent before making auto-dialed calls.