In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2020 U.S. Dist. LEXIS 2800, at *11-12 (D. Mass. Jan. 8, 2020), Judge Gorton granted summary judgment on a TCPA “re-assigned” number case, permitting a “reasonable reliance” defense.
The First Circuit Court of Appeals has not addressed this issue and the district courts in this Circuit and other circuits that have are split. On the one hand, the text of the TCPA does not recognize a reasonable reliance defense and only considers a caller’s intent in connection with the possibility of treble damages. See, e.g.,Jiminez v. Credit One Bank, N.A., 377 F. Supp. 3d 324, 334 (S.D.N.Y. 2019); Echevvaria v. Diversified Consultants, Inc., No. 13 Civ. 4980, 2014 U.S. Dist. LEXIS 32136, 2014 WL 929275, at *4 (S.D.N.Y. Feb. 28, 2014). On the other hand, the FCC has interpreted the TCPA not to require the impossible of callers, such as knowing that a number has been reassigned. See, e.g., Roark v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 U.S. Dist. LEXIS 193252, 2018 WL 5921652, at *8 (D. Minn. Nov. 13, 2018); AMP Auto., LLC v. B F T, LP, No. 17-5667, 2019 U.S. Dist. LEXIS 52793, at *8-*9 (E.D. La. Mar. 28, 2019). Although the text of the TCPA does not provide for reasonable reliance, this Court finds persuasive the FCC’s order emphasizing that the TCPA does not require the impossible of callers. It is unclear what else, if anything, Boston Scientific could have done to ensure the numbers of the clinic patients had not been reassigned. This Court declines to contravene the FCC’s regulation by interpreting the TCPA as requiring callers to do what the competing expert reports in this case demonstrate is either impossible, or at least highly unreliable. Boston Scientific reasonably relied on its partner clinics to provide an invitee list of current patients who had provided their contact information for health-care-related events and services.