Spousal Consent Defeats TCPA Claim

What happens when one “called party” gives prior express consent to contact a certain number, and another doesn’t?

Well, in Rodriguez v. Premier Bankcard (Ohio 2018), a husband provided a phone number to a finance company to contact him to discuss his account. The husband was the subscriber. His spouse was the purported sole user of the telephone.

The court referred to authority from the FCC and the Third Circuit to the effect that it is “‘reasonable for callers to rely on consent to receive robocalls from either type of called party. In other words, either the subscriber or the non-subscriber customary user can give prior express consent.

The court concluded that the husband’s consent precluded the wife’s claim. Whether she personally provided prior express consent was not dispositive.

The Telephone Consumer Protection Act authorizes calls with the consent of the “called party.” A subscriber is a “called party.” Other parties may also be a “called party.” Thus, according to the court, calls made with the consent of the “subscriber” are not actionable, even if someone else answers the call or uses the telephone number with the subscriber’s consent. Users of that telephone number are subject to the consent granted by the subscriber.

Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

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