In Danehy v. Time Warner Cable Enterprise LLC, No. 5:14-cv-133, 2015 WL 5534285 (E.D.N.C. Sep. 18, 2015), the United States District Court for the Eastern District of North Carolina held that a caller’s good-faith belief of consent is a complete defense under the Telephone Consumer Protection Act (“TCPA”).

The defendant in Danehy,  a cable company, had been asked by one of its customers to perform a service visit.  The customer had provided a cell phone number to the defendant as one of his contact numbers. Unbeknownst to the defendant, the cell phone number had since been reassigned to the plaintiff.  It was undisputed that the plaintiff himself never provided consent for the defendant to call the number.

The defendant placed six calls to the cell phone number in an attempt to reach its customer regarding the service visit.  The Danehy plaintiff filed suit, alleging that the defendant violated the TCPA by 1) placing unauthorized calls to his cell phone using an automatic telephone dialing system, and 2) placing calls to a number listed in the national Do-Not-Call Registry.  The defendant moved for summary judgment on both counts.

The court adopted the magistrate’s recommendation to grant summary judgment on the grounds that the defendant had consent to call the plaintiff’s cell phone number.   Although the plaintiff himself never provided consent, the “defendant in good faith relied on the consent of its customer, the former owner of plaintiff’s telephone, when making calls to the plaintiff.”  This “good faith belief of consent,” the court held, “is a complete defense to both plaintiff’s ATDS claims and his Do-Not-Call Registry claims.”  Alternatively, the court noted, the defendant’s calls, placed in response to a call for service, “fell outside the intended scope of the TCPA.”

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