A federal judge last week denied granting an amended motion for preliminary approval of a class action settlement in a TCPA case, without prejudice, on numerous grounds. Most specifically, the judge was concerned that the class included members that had accounts and did not have accounts with the defendant and how that played into consent under the TCPA.
Things constantly change in the Telephone Consumer Protection Act world, sometimes for the good of the industry; sometimes not. This time, it appears that common sense has prevailed in a case involving consent to call cell phones, and may help to shape future TCPA defense arguments.
So, where does this leave us and what does all of this mean? Clearly, the TCPA and the interpretation thereof are in flux. Creditors and debt collectors have come to rely upon the 2008 FCC ruling as a means in which to establish prior express consent under the TCPA. Mais now holds that neither a creditor nor a debt collector have consent to call a cell phone number via automated dialing equipment or to leave prerecorded messages under the TCPA merely by obtaining a phone number provided on a credit application.