9th Circuit Revises Meyer TCPA Decision on Issue of Consent Based on Industry Support, But Affirms Decision and Denies En Banc Review

On December 28, the Court of Appeals for the Ninth Circuit in Meyer v. Portfolio Recovery Services, 2012 WL 6720599  (9th Cir. 2012) denied rehearing of its previous opinion, but amended its opinion in the manner industry requested in its Amicus brief.  (weblog post regarding decision: http://www.calautofinance.com/?p=3193); industry support for re-hearing: http://www.calautofinance.com/?p=3393)) Specifically, industry asked the Court of Appeals to change the following information from the Court’s previous opinion:

The American Financial Services Association (“AFSA”) and the California Financial Services Association (“CFSA”) file this amicus curiae brief in support of appellant’s petition for rehearing to request that the Court reconsider and remove from its opinion two sentences (the “Two Sentences”) which are incorrect, for the reasons stated in this brief, unnecessary to the Court’s decision, and potentially troublesome for creditors and debt collectors. The Two Sentences state: “Pursuant to the FCC ruling, prior express consent is deemed granted only if the wireless 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. [Citation.] 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.   Slip opn. at 12258”

The Order denying rehearing agreed with the Amicus brief, and stated as follows:

On page 12258 of the slip opinion, replace the final two sentences of the third paragraph with the following language:  “Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564–65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565.

Accordingly, the Court of Appeals correctly deleted all reference to consent given “at the time of the transaction” and now correctly refers to consent given before the call is placed and “in connection with a particular debt.” Severson & Werson authored the Amicus brief on behalf of AFSA and CFSA.