In Hylton v. Titlemax of Va., Inc., No. 4:21-cv-163, 2022 U.S. Dist. LEXIS 202470, at *8 (S.D. Ga. Nov. 7, 2022), Judge Baker denied a TCPA defendant’s summary judgment in a re-assigned number case.
Titlemax argues that summary judgment is warranted because Jennings consented to Titlemax calling the 7270 Number concerning his account. (Doc. 65-1, pp. 7-9.) This argument fails. Section 227(b)(1)(A) only exempts from the TCPA’s coverage calls “made with the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A) (emphasis added). In Osorio v. State Farm Bank, F.S.B., the United States Court of Appeals for the Eleventh Circuit explicitly held that the term “called party” refers to the current subscriber to that number—i.e., the person or entity assigned to the number at the time the call is made—not the “intended recipient” of the call. 746 F.3d 1242, 1250-52 (11th Cir. 2014); see Breslow v. Wells Fargo Bank, 755 F.3d 1265, 1267 (11th Cir. 2014) (recognizing Osorio’s holding that “called party” means “the subscriber to the cell phone service”). In reaching that decision, the court in Osorio adopted the Seventh Circuit Court of Appeals’ reasoning in Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012). 746 F.3d at 1251-52. In Soppet, Judge Easterbrook discerned from the repeated use of the term “called party” in Section 227—as opposed to a term such as “intended recipient”—that “[c]onsent to call a given number must come from its current subscriber . . . and thus any consent previously given, lapses when [the number] is reassigned” by the cellular provider. 679 F.3d at 640-41; see id. at 640 (defining “current subscriber” as “the person who pays the bills or needs the line in order to receive other calls”). Although Jennings consented to receiving calls from Titlemax at the 7270 Number in his credit application, it is undisputed that, after he discontinued the 7270 Number, his cellular provider reassigned it to Hylton. (Doc. 66-1, p. 4.) Subsequently, Titlemax called Hylton—whom Titlemax concedes did not consent to calls from it, (see doc. 65-1, p. 9)—using the 7270 Number, (doc. 66-1, p. 4; see doc. 66-4, p. 3). Thus, for purposes of her claims, Hylton is the “called party” because she was the current subscriber to the 7270 Number when the at-issue calls were made; the fact that Jennings was the intended recipient of the calls is inapposite for purposes of Section 227(b)(1)(A). As such, it is Hylton’s consent—not Jennings’—that matters for purpose of Section 227(b)(1)(A). See Morgan v. Orlando Health, Inc., No. 6:17-cv-1972-Orl-41GJK, 2019 U.S. Dist. LEXIS 223947, 2019 WL 7423512, at *3 (M.D. Fla. Oct. 14, 2019) (“[U]nder the plain language of the [TCPA], Defendants were prohibited from calling the . . . Number without prior express consent of the subscriber—Plaintiff.”). Accordingly, summary judgment is not warranted based merely on 47 U.S.C. § 227(b)(1)(A) and the fact that Jennings consented to Titlemax calling the 7270 Number.
Judge Baker found that “reasonable reliance” in the number provided by their customer’s credit application was not a defense under the TCPA, either under the language of the TCPA itself or under regulatory intepretations.
Titlemax does not meaningfully dispute that the text of the TCPA does not support a reasonable reliance defense. Rather, Titlemax principally relies on the D.C. Circuit’s decision in ACA International and recent rules promulgated by the FCC, which, Titlemax contends, have created a “reasonable reliance regime.” (Doc. 70, p. 7; see id. at pp. 2-10; see also doc. 65-1, pp. 9-14.) Putting aside the question of whether the FCC’s rulemaking could change the plain meaning of the statute, Titlemax is incorrect regarding the influence that rulemaking would have on Hylton’s claims.
Hylton v. Titlemax of Va., Inc., No. 4:21-cv-163, 2022 U.S. Dist. LEXIS 202470, at *16 (S.D. Ga. Nov. 7, 2022)