Court Recognizes Reasonable Reliance on Prior Subscriber's Consent Defense in Denying Summary Judgment to Junk Fax Plaintiff in TCPA Case

Reassigned number liability remains shaky ground in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), with the D.C. Circuit vacating the interpretation of “called party” and the one-call safe harbor. But all hope is not lost: Reasonable reliance remains a viable defense for those defendants who may have made a call or sent a text or fax to a reassigned number based on the prior subscriber’s consent. 

Just last week, the court in AMP Automotive, LLC v. B F T, LP, 2019 U.S. Dist. LEXIS 52793 (E.D. La. Mar. 28, 2019), denied summary judgment to the plaintiff in a junk fax case after finding that a question of fact remained as to whether the defendant had reasonably relied on the prior express consent of the fax number’s previous owner. The plaintiff alleged that the defendant Great American Business Products “blasted thousands of junk faxes” in violation of the TCPA and argued that Great American could not fulfill its burden to establish a consent defense. 

The parties did not dispute that Great American did not have the plaintiff’s prior express consent. But Great American contended that the faxes at issue were solicited—and thus not a violation of the TCPA’s Junk Fax Prevention Act—because the faxes sent to the number reassigned to the plaintiff had been directed to a recipient that had given Great American prior express permission. The plaintiff argued in turn that Great American still could not establish consent because it did not retain or provide records of any recipient’s permission to send the faxes. 

Though noting “telephone numbers and fax numbers are not the same,” the court referred to the 2015 FCC Order as a guide for “the general inquiry of reassigned numbers.” The court cited to the one-call safe harbor as evidence that the FCC’s interpretation of prior express consent encompasses reasonable reliance whether applied to a caller or to the sender of fax. The court accordingly denied summary judgment to the plaintiff because “a reasonable juror could find that [the prior owner of the fax number] gave express prior consent and that Great American reasonably relied upon that consent.”

AMP Automotive is welcome authority for defendants grappling with consent defenses in the reassigned number context. Given the court’s discussion of the FCC’s general embrace of reasonable reliance, AMP Automotive can, and should be, extended beyond the junk fax context and applied to the TCPA more generally. The court’s recognition of a viable reasonable reliance defense gives TCPA defendants solid ground when they unknowingly send calls, texts, or faxes to numbers reassigned to a non-consenting recipient.

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