Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 5469--Matthew F. Kennelly, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge.
Before EASTERBROOK, Chief Judge, and FLAUM and WOOD, Circuit Judges.
The Telephone Consumer Protection Act (TCPA or "the Act"), 47 U.S.C. §227, is well known for its provisions limiting junk-fax transmissions. A less-litigated part of the Act curtails the use of auto- mated dialers and prerecorded messages to cell phones, whose subscribers often are billed by the minute as soon as the call is answered--and routing a call to voicemail counts as answering the call. An automated call to a landline phone can be an annoyance; an automated call to a cell phone adds expense to annoyance. This suit arises from dozens of automated calls made to two cell numbers, which went to voicemail and thus consumed minutes from the subscribers' plans. All of the calls were made in a futile effort to reach previous subscribers to these numbers.
The situation is this: Customer incurs a debt and does not pay. Creditor hires Bill Collector to dun Customer for the money. Bill Collector puts a machine on the job and repeatedly calls Cell Number, at which Customer had agreed to receive phone calls by giving his number to Creditor. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 ¶¶ 9, 10 (Jan. 4, 2008) (2008 TCPA Order). The machine, called a predictive dialer, works autonomously until a human voice comes on the line. If that happens, an employee in Bill Collector's call center will join the call. But Customer no longer subscribes to Cell Number, which has been reassigned to Bystander. A human being who called Cell Number would realize that Customer was no longer the subscriber. But predictive dialers lack human intelligence and, like the buckets enchanted by the Sorcerer's Apprentice, continue until stopped by their true master. Meanwhile Bystander is out of pocket the cost of the airtime minutes and has had to listen to a lot of useless voicemail. (We use Bill Collector as the caller, but this simplified description could as easily use an advertiser that relies for consent on earlier transactions with Customer, or a box that Consumer checked on a vendor's web site.)
In this litigation, Teresa Soppet and Loidy Tang play the roles of Bystander; AT&T plays Creditor; Enhanced Recovery Co. plays the role of Bill Collector. Neither Soppet nor Tang ever consented to receive automated or recorded calls from Enhanced Recovery--but the two Customers did agree to receive calls at the numbers later assigned to Soppet and Tang. Enhanced Recovery called Soppet's number 18 times and Tang's 29 times. By the time it started calling, at least three years had passed since the two Customers furnished the Cell Numbers to AT&T as a way to contact them. Soppet and Tang sued under §227(b)(3), which authorizes an award of actual damages, or $500 per violation, whichever is greater. These amounts are trebled for wilful violations.
The district court certified a class with Soppet and Tang as its representatives. Enhanced Recovery contended that the Customers' consents to be called at the two Cell Numbers remained in force after the numbers' reas- signment to Soppet and Tang. The district court held not--that only the consent of the subscriber assigned to Cell Number at the time of the call (or perhaps the person who answers the phone) justifies an automated or recorded call. 2011 U.S. Dist. LEXIS 92888 (N.D. Ill. Aug. 21, 2011). The judge certified the issue for inter- locutory review under 28 U.S.C. §1292(b), and a motions panel of this court agreed to entertain the appeal, in large measure because whose consent is essential--the original subscriber, or the current one--has yet to be addressed by an appellate court. That was true when we accepted the appeal and remains true today.
The basic rule appears in §227(b)(1), which reads:
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States--(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . (iii) to any tele- phone number assigned to a paging service, cellu- lar telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]
Neither §227(b)(1) nor any other part of the Act defines the phrase "called party", but this language and several other parts of §227 supply clues. Subparagraph (A) asks whether a "called party" consented to the call, and clause (iii) contains the phrase "for which the called party is charged". The second use of "called party" must mean Cell Number's current subscriber, because only the current subscriber pays. The presumption that a statute uses a single phrase consistently, at least over so short a span, see Mohasco Corp. v. Silver, 447 U.S. 807 (1980), implies that the consent must come from the current subscriber.
The phrase "called party" occurs several more times in §227. Subparagraph (b)(1)(B) uses it identically to the first appearance in subparagraph (b)(1)(A). Subparagraph (b)(2)(C) says that the Federal Communications Com- mission may issue regulations allowing automated calls to a cell phone (but not a pager or specialized mobile radio service) when the calls "are not charged to the called party"; this use is identical to the sense "called party" bears in clause (b)(1)(A)(iii). And the phrase appears three times in §227(d)(3). Subsection (d) as a whole bears the caption "Technical and procedural standards"; paragraph (3) reads:
Artificial or prerecorded voice systems
The Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice mes- sage via telephone. Such standards shall require that--
(A) all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the busi- ness, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone ...