In Osorio v. State Farm Bank, F.S.B., No. 13-10951, 2014 U.S. App. LEXIS 5709 (11th Cir. Mar. 28, 2014), the U.S. Court of Appeals for the Eleventh Circuit has provided some guidance on the parameters of "prior express consent" under the Telephone Consumer Protection Act ("TCPA"). In particular, the court held: (1) consent can be given on behalf of another person if an agency relationship exists and (2) a party may orally revoke consent.
In Osorio, Clara Betancourt provided the defendant State Farm Bank with plaintiff Fredy Osorio's cell number by listing it on a credit card application. Betancourt and Osorio were not married, but were the parents of an adult son and shared a home and a cell-phone plan. Later, Betancourt fell behind in her credit card payments. In an effort to collect the debt, defendant began calling Osorio's cell number using an auto-dialer.
The district court granted summary judgment in favor of the defendant on the ground that Osorio and Betancourt had "common authority" over the cell phone. The Eleventh Circuit rejected this approach, holding that an agency relationship must exist for one person to give prior express consent on behalf of another. The Eleventh Circuit then reversed summary judgment on the ground that disputed issues of fact existed about whether an agency relationship existed between Osorio and Betancourt.
The court also held that, under the TCPA, a party may revoke prior express consent, either orally or in writing. Since the facts were in dispute, this also prevented summary judgment.
This is one of the few Circuit Court of Appeal decisions interpreting the TCPA. It provides additional guidance on the increasingly litigated issues of agency and revocation of consent under the TCPA.
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