District Court (NJ) Says Triable Issue of Fact Whether Cell Phone Owner Permitted User to Give Out Telephone Number, But No Way It Could Have Been Willful

According to the FCC, the manner in which a business obtains a telephone number informs the consideration of whether a number was “knowingly released” and, therefore, permissible to call. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 563 (Jan. 4, 2008) (“2008 Ruling”). The FCC’s 2008 Ruling clarifies that calls made to a cellular telephone number “provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party.” Id. at 559, 564 (emphasis added). Courts have consistently interpreted the “called party” to mean the actual recipient of the call and not the intended recipient. Leyse v. Bank of America Nat. Ass’n, 804 F. 3d 316, 325 (3d. Cir. 2015) (concluding that under the Act, the called party is the recipient of the call, and may differ from the intended recipient of the call); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir. 2012) (ruling that the called party “means the person subscribing to the called number at the time the call is made” as opposed to the intended recipient). . . Against this back drop, this Court confronts a unique factual situation: Jackson permits Cochran to list her cellular phone number in certain circumstances. PMAB contends that the record evidence demonstrates that Cochran uses Jackson’s phone number with permission and therefore, PMAB had Jackson’s consent to call her in the attempt to collect Cochran’s debt. In a similar case, the Eleventh Circuit Court of Appeals held that summary judgment cannot be granted under the Act where facts relevant to the scope of one person’s authority to list another person’s cell phone as a contact are in dispute. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014).  In Osorio, the plaintiff’s housemate gave plaintiff’s cellular telephone number to defendant as a contact number, but stated she provided it for emergencies only. Id. at 1242 (Defendant used an automated calling system to attempt to collect housemate’s debt and called plaintiff’s cellular phone number, alleging it was provided as housemate’s work number. In reversing the district court’s grant of summary judgment in favor of plaintiff, the Eleventh Circuit held that genuine issues of material fact existed as to whether housemate had plaintiff’s consent, and thereby defendant had plaintiff’s consent, when housemate gave defendant plaintiff’s phone number. Id. at 1252–53. Although housemate and plaintiff shared a cell-phone plan, the Court, adopting the Third Circuit’s common law concept of consent as articulated Gager, found that credibility issues must inform the contours of the consent housemate had to use plaintiff’s cellular number as a contact.  Here, Jackson and Cochran testify inconsistently as to the scope of the consent Jackson affords Cochran. Ex. B., Cochran Dep., 52:2–11. Cochran states that he never gives out his cellular number and will use Jackson’s or his mother’s number instead. Id. 51:24–52:1. Cochran testifies that he had Jackson’s permission to provide Inspira with her number ending in 4171 so that Inspira could contact him and that he provided the number during the registration process. Id. 61:1–13; B. 59:17–24. The record reflects other instances where Cochran may have used Jackson’s number that go beyond the parameters set forth in Jackson’s deposition testimony. Specifically, Jackson believed that calls from DirectTV were an attempt to collect a debt owed by Cochran. Ex. A., Jackson Dep., 62:24–63:24. As a result, there are genuine issues of material fact related to whether Jackson, as the called party, provided express consent to Cochran to list her number for all communication that flowed from Cochran’s treatment at Inspira. As a result, the credibility of both Jackson and Cochran is at issue and summary judgment is denied as to the whether PMAB violated the Act.  In addition, there is no evidence in the record, even assuming that Cochran was mistaken as to his authority to use Jackson’s cellular number, that PMAB willfully violated the TPCA in a manner that warrants treble damages. Violations of the TCPA allow a successful plaintiff to recover his actual monetary loss or $500 for each violation, whichever is greater. 47 U.S.C. § 227(b)(3)(B). A court may, in its discretion, award treble damages where a defendant’s violations are committed “willfully or knowingly.” 47 U.S.C. § 227 (b) (3). Cochran had permission to use Jackson’s number in certain circumstances and gave that number to Inspira, without providing his own number or indicating that the number did not belong to him. For this reason and because the record before the Court lacks evidence tending to support even an inference of an intentional violation of the statute by PMAB, summary judgment is granted on the issue of treble damages under the TCPA.