Court Allows ‘Reasonable Reliance’ on Prior Subscriber Consent

TCPA Connect

Callers have the right to reasonably rely on the consent of a prior subscriber to a telephone number, a federal district court in Massachusetts has ruled, granting summary judgment in favor of the defendant.

From 2014 through 2018, Boston Scientific partnered with local pain management clinics to host seminars. It also worked with two vendors to transmit prerecorded voice messages inviting clinic patients to the seminars, although the list of invitees was created by the clinic physicians.

Steven Sandoe received two prerecorded messages in June and July 2018. The calls were intended for S.B., a patient of Spine Works Institute, a Boston Scientific partner clinic, but the telephone number had been reassigned to Sandoe. He filed a putative class action asserting violations of the Telephone Consumer Protection Act (TCPA). Boston Scientific moved for summary judgment, arguing that it reasonably relied on the consent previously obtained from S.B.

The court granted Boston Scientific’s motion for summary judgment, reasoning that Boston Scientific likely could not have done more to ensure that the numbers of prior subscribers had not been reassigned. In reaching this decision, the court considered the history of the issue.

In 2015, the Federal Communications Commission (FCC) interpreted the TCPA as creating a “one-call” safe harbor that allowed callers to “reasonably rely” on prior express consent to avoid liability for a caller’s first call to a reassigned number.

The one-call safe harbor was later rejected by the D.C. Circuit Court of Appeals in ACA International v. FCC.

In response, the FCC issued a new order explaining that the D.C. Circuit’s ruling did not question the agency’s authority to interpret the TCPA “not to demand the impossible of callers” and launched the process of creating a comprehensive database of reassigned numbers.

Having found the FCC’s new order persuasive, the court further held that, because the calls qualified as healthcare calls—as they concerned a product or service that was indisputably health related, were made on behalf of a healthcare clinic and were related to the health needs of the intended recipient—the defendant successfully established that S.B. provided prior express consent.

To read the memorandum and order in Sandoe v. Boston Scientific Corporation, click here.

Why it matters: The decision is a victory for TCPA defendants facing reassigned number class actions, with the Massachusetts ruling joining other federal courts (in Louisiana and Minnesota) that have recognized a reasonable reliance defense.

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