In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3819
T ERESA S OPPET and L OIDY T ANG, individually
and on behalf of a class,
Plaintiffs-Appellees,
v.
E NHANCED R ECOVERY C OMPANY, LLC,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 5469—Matthew F. Kennelly, Judge.
A RGUED A PRIL 19, 2012—D ECIDED M AY 11, 2012
Before E ASTERBROOK, Chief Judge, and F LAUM and
W OOD , Circuit Judges.
E ASTERBROOK, Chief Judge. The Telephone Consumer
Protection Act (TCPA or “the Act”), 47 U.S.C. §227, is well
known for its provisions limiting junk-fax transmissions.
A less-litigated part of the Act curtails the use of auto-
mated dialers and prerecorded messages to cell phones,
2 No. 11-3819
whose subscribers often are billed by the minute as soon
as the call is answered—and routing a call to voicemail
counts as answering the call. An automated call to a
landline phone can be an annoyance; an automated call
to a cell phone adds expense to annoyance. This suit
arises from dozens of automated calls made to two cell
numbers, which went to voicemail and thus consumed
minutes from the subscribers’ plans. All of the calls were
made in a futile effort to reach previous subscribers to
these numbers.
The situation is this: Customer incurs a debt and does
not pay. Creditor hires Bill Collector to dun Customer for
the money. Bill Collector puts a machine on the job and
repeatedly calls Cell Number, at which Customer had
agreed to receive phone calls by giving his number to
Creditor. See In re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 23 FCC Rcd.
559 ¶¶ 9, 10 (Jan. 4, 2008) (2008 TCPA Order). The machine,
called a predictive dialer, works autonomously until
a human voice comes on the line. If that happens, an
employee in Bill Collector’s call center will join the call.
But Customer no longer subscribes to Cell Number,
which has been reassigned to Bystander. A human being
who called Cell Number would realize that Customer
was no longer the subscriber. But predictive dialers
lack human intelligence and, like the buckets enchanted
by the Sorcerer’s Apprentice, continue until stopped by
their true master. Meanwhile Bystander is out of pocket
the cost of the airtime minutes and has had to listen to
a lot of useless voicemail. (We use Bill Collector as the
caller, but this simplified description could as easily use
No. 11-3819 3
an advertiser that relies for consent on earlier transac-
tions with Customer, or a box that Consumer checked
on a vendor’s web site.)
In this litigation, Teresa Soppet and Loidy Tang play
the roles of Bystander; AT&T plays Creditor; Enhanced
Recovery Co. plays the role of Bill Collector. Neither
Soppet nor Tang ever consented to receive automated
or recorded calls from Enhanced Recovery—but the two
Customers did agree to receive calls at the numbers
later assigned to Soppet and Tang. Enhanced Recovery
called Soppet’s number 18 times and Tang’s 29 times. By
the time it started calling, at least three years had passed
since the two Customers furnished the Cell Numbers to
AT&T as a way to contact them. Soppet and Tang sued
under §227(b)(3), which authorizes an award of actual
damages, or $500 per violation, whichever is greater.
These amounts are trebled for wilful violations.
The district court certified a class with Soppet and Tang
as its representatives. Enhanced Recovery contended
that the Customers’ consents to be called at the two
Cell Numbers remained in force after the numbers’ reas-
signment to Soppet and Tang. The district court held
not—that only the consent of the subscriber assigned to
Cell Number at the time of the call (or perhaps the
person who answers the phone) justifies an automated
or recorded call. 2011 U.S. Dist. L EXIS 92888 (N.D. Ill.
Aug. 21, 2011). The judge certified the issue for inter-
locutory review under 28 U.S.C. §1292(b), and a motions
panel of this court agreed to entertain the appeal, in
large measure because whose consent is essential—the
4 No. 11-3819
original subscriber, or the current one—has yet to be
addressed by an appellate court. That was true when
we accepted the appeal and remains true today.
The basic rule appears in §227(b)(1), which reads:
It shall be unlawful for any person within the
United States, or any person outside the United
States if the recipient is within the United
States—(A) to make any call (other than a call
made for emergency purposes or made with the
prior express consent of the called party) using
any automatic telephone dialing system or an
artificial or prerecorded voice . . . (iii) to any tele-
phone number assigned to a paging service, cellu-
lar telephone service, specialized mobile radio
service, or other radio common carrier service, or
any service for which the called party is charged
for the call[.]
Neither §227(b)(1) nor any other part of the Act defines
the phrase “called party”, but this language and several
other parts of §227 supply clues. Subparagraph (A) asks
whether a “called party” consented to the call, and clause
(iii) contains the phrase “for which the called party is
charged”. The second use of “called party” must mean Cell
Number’s current subscriber, because only the current
subscriber pays. The presumption that a statute uses
a single phrase consistently, at least over so short a
span, see Mohasco Corp. v. Silver, 447 U.S. 807 (1980),
implies that the consent must come from the current
subscriber.
No. 11-3819 5
The phrase “called party” occurs several more times in
§227. Subparagraph (b)(1)(B) uses it identically to the
first appearance in subparagraph (b)(1)(A). Subparagraph
(b)(2)(C) says that the Federal Communications Com-
mission may issue regulations allowing automated calls
to a cell phone (but not a pager or specialized mobile
radio service) when the calls “are not charged to the
called party”; this use is identical to the sense “called
party” bears in clause (b)(1)(A)(iii). And the phrase
appears three times in §227(d)(3). Subsection (d) as a
whole bears the caption “Technical and procedural stan-
dards”; paragraph (3) reads:
Artificial or prerecorded voice systems
The Commission shall prescribe technical and
procedural standards for systems that are used to
transmit any artificial or prerecorded voice mes-
sage via telephone. Such standards shall require
that—
(A) all artificial or prerecorded telephone
messages (i) shall, at the beginning of the
message, state clearly the identity of the busi-
ness, individual, or other entity initiating the
call, and (ii) shall, during or after the message,
state clearly the telephone number or address
of such business, other entity, or individual;
and
(B) any such system will automatically release
the called party’s line within 5 seconds of the
time notification is transmitted to the system
that the called party has hung up, to allow the
6 No. 11-3819
called party’s line to be used to make or receive
other calls.
The first and third appearances of “called party” in sub-
paragraph (B) designate the current subscriber of the
called number; the second use refers to the person who
answers the call, because only that person can hang up.
For cell service, the subscriber and the person who
answers almost always are the same, given the norm
that one person does not answer another’s cell phone.
There could be differences between subscriber and an-
swerer in emergencies, however, or in households
where the cell subscriber puts the handset in a cradle
that routes calls to other phones that family members
or guests treat as if they were landline equipment.
Section 227 uses the phrase “called party” seven times
all told. Four unmistakably denote the current sub-
scriber (the person who pays the bills or needs the line
in order to receive other calls); one denotes whoever
answers the call (usually the subscriber); and the others
(the two that deal with consent) have a referent that
cannot be pinned down by context. Enhanced Recovery
asks us to conclude that, despite the presumption of
uniform usage within a single statutory section, those
two uses, and those two alone, denote the person Bill
Collector is trying to reach—in other words, Customer,
who Enhanced Recovery dubs the “intended recipient
of the call.”
The phrase “intended recipient” does not appear any-
where in §227, so what justification could there be for
equating “called party” with “intended recipient of the
call”? (Section 227(b)(1) does use the word “recipient” in a
No. 11-3819 7
context where “recipient” means “current subscriber”;
this doesn’t remotely suggest that “called party” must
mean “intended recipient.”) Enhanced Recovery starts
with the proposition that consent is effective until
revoked and infers that Customer’s consent thus must
last until Bystander, the new subscriber, revokes it. The
idea that one person can revoke another’s consent is
odd. Anyway, there can’t be any long-term consent to
call a given Cell Number, because no one—not Customer,
not Bystander, not even the phone company—has a
property right in a phone number. See Jahn v. 1-800-
FLOWERS.com, Inc., 284 F.3d 807 (7th Cir. 2002). Consent
to call a given number must come from its current sub-
scriber. Enhanced Recovery implicitly acknowledges
this by saying that the current subscriber can rescind
any earlier consent to call Cell Number. But this really
means that Customer’s authority to give consent, and
thus any consent previously given, lapses when Cell
Number is reassigned.
Suppose that Customer had given “consent” to call
someone else’s number—perhaps Customer put down
his own number with a typo, or the number of a person
against whom Customer held a grudge. Enhanced Re-
covery conceded at oral argument that it could not
invoke Customer’s “consent” to avoid liability to the
subscriber of whatever number Customer wrote down.
That pretty much gives away the game, because even
when the Cell Number that Debt Collector calls stems
from Customer’s error or malice, Debt Collector still
could say that Customer is the “intended recipient of
the call.” It is hard to see why Customer’s error should be
treated differently from the reassignment of a number;
8 No. 11-3819
in both situations, the “called party” is the Cell Number’s
current subscriber, not the person Debt Collector wants
to reach. Suppose Smith, trying to reach Jones, dials the
number with a typo and reaches Perkins, who says “you
have the wrong number.” No colloquial user of English
would call Jones rather than Perkins the “called party.” So
too if Jones used to be the subscriber of a number later
reassigned to Perkins, and Smith’s contacts file is out
of date.
Consider another analogy. Borrower agrees with Bank,
as a condition of a loan, that Bank can enter Borrower’s
garage and repossess his car if he does not keep current
on payments. After signing this contract, Borrower sells
his house, moves, does not tell Bank his new address,
and defaults on the loan. Can Bank now enter the garage
of the house where Borrower used to live and seize the
car the repo men find there? Surely not. Borrower can
consent to an entry on his own land and the use of his
own car as collateral, but he can’t consent to an entry
on anyone else’s land or the seizure of someone else’s
property. Borrower’s consent follows Borrower’s change
of address: Bank has permission to enter the garage
where Borrower keeps his car at the time of entry;
Bank does not have consent to enter the garage of the
new owner of Borrower’s old house. Similarly, Customer
could consent expressly to receive calls at his current
Cell Number, even if that number changes, but simply
providing Creditor with a number—which is how Cus-
tomer consented here—does not authorize perpetual
calls to that number after it has been reassigned to some-
one else.
No. 11-3819 9
Enhanced Recovery’s argument does not rest on either
a linguistic analysis of §227 or the way the law under-
stands consent. Instead Enhanced Recovery asks us
to recognize that people are moving in droves from
landline to cell service, which brings §227(b)(1) into
operation more often; that numbers are portable (so
numbers that used to reach landline phones may
start to ring cell phones); and that making it risky to
use predictive dialers will drive up the expense of
debt collection—which in the long run will lead to
higher prices across the board (since firms have to cover
the full cost of doing business). Given these facts, En-
hanced Recovery insists, it would be absurd to read
“called party” in §227(b)(1) to mean the current sub-
scriber, as opposed to the person the caller wants to reach.
Courts do try to avoid imputing nonsense to Con-
gress. This means, however, modest adjustments to texts
that do not parse. It does not mean—at least, should not
mean—substantive changes designed to make the law
“better.” That would give the judiciary entirely too much
law-making power. When a text can be applied as written,
a court ought not revise it by declaring the legislative
decision “absurd.” See, e.g., Jaskolski v. Daniels, 427 F.3d 456
(7th Cir. 2005); United States v. Logan, 453 F.3d 804 (7th Cir.
2006), affirmed, 552 U.S. 23 (2007); Spivey v. Vertrue, Inc.,
528 F.3d 982 (7th Cir. 2008). See also John Manning, The
Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003). Nor
should a court try to keep a statute up to date. Legislation
means today what it meant when enacted. See, e.g.,
National Broiler Marketing Ass’n v. United States, 436 U.S.
816, 827 (1978).
10 No. 11-3819
Section 227 was enacted in 1934. The provision
covering automated calls to cell phones was added in
1991, and the statute has been amended several times
since, most recently in December 2010. If Congress has
failed to appreciate changes in the telecommunications
business, Enhanced Recovery and the bill collectors’
trade association (ACA International, which filed an
amicus brief) should alert their lobbyists. Carl von
Clausewitz wrote that war is the continuation of politics
by other means, Vom Kriege (1832), but adjudication
is not the continuation of legislation by other means.
Of course, the trade association already may have
tried and failed to persuade Congress to replace “called
party” with “intended recipient of the call.” That sub-
stitution would expose new subscribers to unwanted
calls and unjustified expense. Congress might have
thought the current approach preferable, as a safeguard
of persons assigned to recycled numbers, even though
this protection comes at some cost to bill collectors.
Bill collectors need not abandon predictive dialers.
Other options remain:
• Have a person make the first call (§227(b)(1) is
limited to automated calls), then switch to
a predictive dialer after verifying that Cell
Number still is assigned to Customer.
• Use a reverse lookup to identify the current
subscriber to Cell Number.
• Ask Creditor, who obtained Customer’s con-
sent, whether Customer still is associated with
Cell Number—and get an indemnity from
No. 11-3819 11
Creditor in case a mistake has been made.
(Indemnity may be automatic under ¶10 of
the 2008 TCPA Order, which states that calls
placed by a third-party collector on behalf of
a creditor are treated as having been made
by the creditor itself.)
The third of these options is especially attractive when
Creditor is a phone company—though perhaps knowing
that Creditor is a telecommunications provider should
itself alert Bill Collector that Cell Number no longer
is assigned to Customer. If you don’t pay your phone
bill, the phone company cuts off service and assigns
the number to someone else.
Knowing that Creditor is a phone company, and infer-
ring that Customer’s service will have been discon-
tinued, does not necessarily solve Bill Collector’s problem,
however. Customer may have agreed to be reached at
more than one number. For example, Customer might
subscribe to landline service from AT&T and cell service
from Verizon, and give both numbers. If AT&T assigns
an overdue account, Debt Collector might infer that
Customer no longer can be reached at the number on
AT&T’s network, but Customer might still be the sub-
scriber to the number on Verizon’s network.
One more argument requires brief discussion. Several
parts of the Act require or permit the FCC to issue reg-
ulations, and the Commission also declares its under-
standing of provisions on which it is not authorized
to issue regulations. As we’ve mentioned, the FCC
has some authority to allow exceptions to §227(b). In 2005
ACA International asked the Commission to exempt
12 No. 11-3819
bill collection from the statutory system. The 2008
TCPA Order addresses this subject and some others. The
Commission concluded that the bill-collection industry
does not need an exception because §227(b)(1)(A)
already allows calls with the “express consent” of the
called party. The FCC opined that “the provision of a
cell phone number to a creditor, e.g., as part of a credit
application, reasonably evidences prior express consent
by the cell phone subscriber to be contacted at that
number regarding the debt.” 2008 TCPA Order at ¶9.
Both Enhanced Recovery and ACA International
contend that this language is conclusive in their favor.
The FCC said that providing a number gives “express
consent by the cell phone subscriber to be contacted at that
number regarding the debt.” (Emphasis added.) We don’t
get the argument. Of course a subscriber’s consent to be
called at a given number is consent “to be contacted at
that number.” The FCC was addressing the meaning
of the statutory words “express consent”. It was not
addressing the meaning of the statutory words “called
party” or stating a view about what happens if a
number is reassigned after a subscriber gives consent.
This litigation concerns the meaning of “called party.”
The FCC did not define that term in the 2008 TCPA
Order or, as far as we know, anywhere else.
We conclude that “called party” in §227(b)(1) means
the person subscribing to the called number at the time
the call is made. The district court’s decision is
AFFIRMED .
5-11-12