Potential "Good Faith" Defense to TCPA Liability

By: Matt Foree

A California federal court has recently held that a debt collector is not liable under the Telephone Consumer Protection Act ("TCPA") based on the collector's "good faith" belief that the Plaintiff in the case provided prior express consent to the calls. (See Chyba v. First Financial Asset Management, Inc., A.K.A. FFAM, Case No. 12-cv-1721-BEN (S.D. Cal. Nov. 20, 2013)).

In Chyba, Plaintiff alleged liability under the TCPA after Defendant First Financial Asset Management, Inc. A.K.A. FFAM ("FFAM") made four telephone calls to Plaintiff's cellular telephone. The TCPA exempts from liability those callers making calls with the recipient's consent. FFAM asserted that it was acting to collect a debt for a creditor, Enterprise Rent-A-Car ("Enterprise"), whose account showed that Plaintiff owed money to Enterprise based on damage to a rental car. Enterprise's records also included Plaintiff's telephone number that FFAM called listed as the "home" number on the rental car agreement, with a different number listed as her cellular number. Defendant claims it had Plaintiff's consent because she gave her number to Enterprise. Plaintiff disputed that she ever gave consent to Enterprise, denied giving her number to Enterprise, and could not recall whether she rented the car at issue.

Judge Benitez, writing for the U.S. District Court for the Southern District of California, granted Defendant's motion for summary judgment on the TCPA claim based on FFAM's good faith defense. He stated, "[A]lthough Plaintiff did not give consent directly to Defendant to call her cell phone number, it is sufficient that Defendant had a good-faith basis to believe that Plaintiff had provided consent to the creditor on whose behalf Defendant sought to collect a debt." Judge Benitez further held, "Even if Plaintiff is correct in stating that she never gave Defendant or Enterprise consent to call, and there was no actual prior consent from Plaintiff, Defendant is not liable for acting in good faith upon the information provided to it."

Only time will tell as to the effect of Chyba, including whether other courts will apply a good faith defense and, if so, whether they will apply the defense outside of the debt-collection context. In the meantime, TCPA defendants will appreciate the possibility of an additional defense to the limited defenses available to the TCPA’s costly liability.



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