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CEB Prac. Guide § 2B.18: "Called Party" -- Subscriber Issues

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District Court (Wis.) Denies TCPA Class Cert.; Says Non-Contracting Parties Still Theoretically Might Give Consent, Rendering Class Non-Ascertainable and Non-Superior

by Scott J. Hyman |

In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More

District Court (Fla.) Says Breslow/Osorio’s TCPA Holding that “Called Party” Means “Subscriber” Actually Meant “Regular User”

by Scott J. Hyman |

In Meyer v. Diversified Consultants, Inc., 2014 WL 5471114 (M.D.Fla. 2014), Judge Toomey found that a “regular user” was the “called party” under Osorio/Breslow. In the Motion to Dismiss, Defendant argues that “[b]ecause plaintiff was not the subscriber of the telephone, she was not the ‘called party’ under the TCPA and Count I of the class action complaint must be… Read More

District Court (W.Va.) Holds that “Wrong Party” Holder of “Life-Line” Phone Can Bring TCPA Claim Even if He Should Not Have Been Entitled to Such a Phone

by Scott J. Hyman |

In Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows. On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone… Read More

District Court (Ill.) Finds TCPA Class Ascertainable. It’s a TCPA Party; Everyone Has Standing!

by Scott J. Hyman |

In Birchmeier v. Caribbean Cruise Line, Inc., --- F.Supp.2d ----, 2014 WL 3907048 (N.D.Ill. 2014), Judge Kennelly held that a TCPA class was ascertainable, rejected the Defendant’s argument that, under Soppet, only the subscriber had standing and it could not be determined whether the subscriber answered the cellular telephone. Defendants appear to be making a two-part argument: first, the people… Read More

Creditor Files Ex Parte with FCC, Asking FCC to Interpret “Called Party” as “Intended Recipient” under Recent SCOTUS Rules for Statutory Construction by Administrative Agency

by Scott J. Hyman |

On July 21st, an ex parte was filed with the FCC asking it to interpret the TCPA consistent with Utility Air Regulatory Group v. Environmental Protection Agency, 2014 U.S. LEXIS 4377 (June 23, 2014), where the United States Supreme Court Supreme Court decision supporting the position advanced by Wells Fargo that the term “called party” under the Telephone Consumer Protection Act (TCPA)… Read More

11th Cir. Withdraws Breslow Opinion on “Called Party” under TCPA — Says We Meant “Osorio”

by Scott J. Hyman |

The Court of Appeals for the 11th Circuit replaced it's June 5, 2014 decision, and issued a substitute opinion here, stating that the issue on appeal previously was decided by its Osorio decision, which had defined “called party” as the subscriber, and that “each succeeding panel is bound by the holding of the first panel to address an issue of law,… Read More

Foreshadowed by its Osorio Decision, the 11th Circuit Follows Soppett’s Holding that the Cell Phone Subscriber Is the “Called Party” Under TCPA

by Scott J. Hyman |

In Breslow v. Wells Fargo, here, the 11th Circuit followed the 7th Circuit's Soppett decision to find that "called party" under the TCPA is the subscriber to the cellular telephone.  "At bottom, the FCC recognized that debt collectors are in a better position to determine whether a party’s consent is still valid. That is, a person who is assigned a… Read More

United Healthcare Files Petition with FCC on the Issue of Unintended Recipients of Calls to Cell Phones

by Scott J. Hyman |

United Healthcare has filed a petition with the FCC essentially taking a run at Soppett.  According to the FCC, United Healthcare indicates that it obtains prior express consent from individuals before placing healthcare-related informational calls to wireless telephone numbers using an automatic telephone dialing system or an artificial or prerecorded voice.   “Unbeknownst to United,” however, “the wireless telephone numbers for… Read More

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