In Soppet v. Enhanced Recovery, Co. 2011 WL 3704681 (N.D. Ill. 2011), Judge Kennelly held a debt collector liable under the TCPA where the original owner of the cellular telephone consented to be called on their cell phone. When the cell number was transferred to another owner, however, the new owner began to receive calls, and sued under the TCPA. The facts were as follows:
AT & T retained ERC, a debt collection company, to collect debts owed by Dupree Riley and Sherita Morgan. When Riley opened her account with AT & T in July 2005, he gave AT & T the telephone number 708–xxx–2583 as a contact number. When Morgan opened her AT & T account in October 2006, she gave AT & T the telephone number 708–xxx–8483 as a contact number. AT & T provided these numbers to ERC when it retained ERC to collect the debts. Since February 2007, Soppet has had cell phone with the number 708–xxx–2583. ERC called that number twenty-four times from January through September 2010 using an automated or predictive dialing system and left prerecorded messages each time. The messages were for Riley. It is clear from the contents of the prerecorded messages that ERC was trying to reach Riley. The messages advised that the recipient should delete the message if she was not Riley. Soppet’s voice mail greeting informed callers that they had reached Teresa Soppet. This did not deter ERC from continuing to call the number. Soppet did not contact ERC to ask it to stop calling her number. Tang has had the cell phone number 708–xxx–8483 since January 2007. She alleges that ERC called that number at least fifteen times from October 2009 through September 2010, using an automatic telephone dialing system. It is clear from the prerecorded messages that ERC left that it was trying to reach Morgan. A number of the messages advised the recipient to delete the messages if she was not Morgan. Until about June 2010, Tang had a voice mail greeting informing callers they had reached Loidy Tang. This did not deter ERC from continuing to call the number. Tang says that in September 2010, she contacted ERC and requested that it stop calling her number for Morgan. ERC did not call Tang after that request.
The District Court denied the debt collector’s summary judgment motion.
ERC’s first argument is that Soppet and Tang were not the “called parties” or the intended recipients of the call and that for this reason they lack standing to sue under section 227(b)(1). The Court disagrees and, in this regard, adopts the discussion of this point by its colleagues Judge Charles Kocoras and Chief Judge James Holderman. See Tang v. Medical Recovery Specialists, LLC, No. 11 C 2109, slip op. at 3 (N.D.Ill. July 7, 2011); D.G. ex rel. Tang v. William W. Siegel & Assocs., No. 11 C 599, 2011 WL 2356390, at *2 (N.D.Ill. June 14, 2011). To put it in a nutshell, the statutory term “called party” is in the statute as part of a consent defense, not as a limitation on who may sue for a violation of the statute. The plain language of section 227(b)(1) makes it clear that the “recipient” of a call violative of that provision may sue—not merely, as ERC argues, the “intended recipient.” Soppet and Tang were the recipients of the calls at issue in this case. ¶ ERC’s second argument is that it had the consent of the parties it intended to call—Riley and Morgan—and that Soppet and Tang have no viable claim even though they were the actual recipients of the calls. As noted above, section 227(b)(1) contains an exception to liability for calls “made with the prior express consent of the called party.” ¶ ERC contends that the “called party” is the party that the caller intended to call; Soppet and Tang contend that the “called party” is the actual recipient. The Court assumes for purposes of this discussion that the consent that Riley had provided four-plus years before ERC first called Soppet and the consent that Morgan had provided three years before ERC first called Tang qualifies under section 227(b)(1) even absent evidence that ERC had done anything to attempt to confirm that Riley and Morgan still had those phone numbers. Section 227 contains no express definition of the term “called party.” Section 227(b)(1) uses the term “recipient” in referring to statutory coverage of calls made from outside the United States to persons within the United States. One might infer from this that the term “called party,” used later in section 227(b)(1), means something other than “recipient.” But the usage of “called party” in section 227(b)(1) and the remainder of section 227 makes it clear, in the Court’s view, that the “called party” is the party that the caller actually calls—in other words, the actual recipient of the call. . . The Court concludes that the term “called party” in section 227(b)(1) refers to the actual recipient of a call, just as it does in section 227(d)(3). As a result, Soppet and Tang are the “called parties” with regard to the calls at issue in this case. Because there is no evidence that they expressly consented to receive calls from ERC, ERC is not entitled to the benefit of section 227(b)(1)’s exception to liability. ¶ For these reasons, the Court denies ERC’s motion for summary judgment.
The debt collector appealed to the Court of Appeals for the Seventh Circuit, and the matter is now fully briefed. The Appellant’s Brief can be found here, the Respondent’s Brief here, and the ACA’s (amended) Amicus Brief here.