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Good Faith Belief in Consumer Consent a Valid TCPA Defense?


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A federal court judge has recently ruled that a good faith belief that consent existed might be a complete defense to a Telephone Consumer Protection Act (“TCPA”) lawsuit.

In Chyba v. First Financial Asset Management, Inc., the plaintiff filed her TCPA complaint after receiving a handful of telephone calls to her cellular phone from a collection agency (the “Agency”).  The calls were never answered but the Agency left pre-recorded messages about “an important business matter.”  The calls were made in furtherance of efforts to collect a debt on behalf of a third party creditor (the “Creditor”).

The issue of prior consent, for debt collection purposes, turned on whether plaintiff provided her telephone number to the Creditor.  Third party debt collector calls on behalf of a creditor are treated as if the creditor had placed a call itself.  If the Creditor had consent then the Agency did, too.

Plaintiff disputed ever providing such consent.  However, the Agency argued that it had a good faith belief that plaintiff had given consent to the Creditor on whose behalf the Agency sought to collect a debt.

In short, the Court ruled that even if plaintiff never gave the Agency or the Creditor consent to call, the Agency is not liable for acting in good faith upon the information provided to it.  The Creditor provided the Agency with an agreement which contained a telephone number that plaintiff presumably provided.  The Creditor had no duty to independently investigate.

Moreover, the Federal Communications Commission has stated that a creditor bears responsibility for violations of FCC Rules for calls made on its behalf.  Also, in the context of the Fair Debt Collection Practices Act, the U.S. Court of Appeals for the Ninth Circuit has found that a debt collector is entitled to rely on a creditor’s statement to verify debt as long as the collector has a good faith belief that the statement is true.

Given the current landscape of TCPA litigation, this “importation” of the good faith defense found in the Fair Debt Collection Practices Act is potentially a significant victory for defendants.  While it could indeed be limited to debt collectors only, it contrasts Seventh Circuit strict liability-type rulings and clearly suggests that, under the right circumstances, a good faith defense can serve as a complete defense to TCPA claims.

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

Richard B. Newman
Richard B. Newman
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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