Case: 12-14564       Date Filed: 06/09/2014       Page: 1 of 5


                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 12-14564
                              ________________________

                          D.C. Docket No. 1:11-cv-22681-RNS


LYNN BRESLOW,
individually and on behalf of “R.B.,” a minor,

                                                                         Plaintiff – Appellee,

WELLS FARGO BANK, N.A.,
a national bank,
d.b.a. Wachovia Bank N.A.,
                                                                     Defendant – Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                       (June 9, 2014)

Before TJOFLAT and WILSON, Circuit Judges, and PROCTOR, ∗ District Judge.

PER CURIAM:


       ∗
         The Honorable R. David Proctor, District Judge, United States District Court for the
Northern District of Alabama, sitting by designation.
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       On the Court’s own motion, we vacate the original opinion in this

case, issued on June 5, 2014, and substitute the following opinion in its place.

       The Telephone Consumer Protection Act of 1991 (“TCPA”), Pub. L. No.

102-243, 105 Stat. 2394, makes it unlawful to make any call using an automatic

telephone dialing system (an “autodial system”) to a cellular telephone without the

prior express consent of the “called party.” 47 U.S.C. § 227(b)(1)(A)(iii) (2006).1

In this case, which comes to us on interlocutory appeal, we are asked to determine

the proper interpretation of the term “called party.”

       The facts of this case are straightforward and for the most part undisputed.

Wells Fargo made multiple calls 2 using an autodial system to a cell phone number

assigned to Lynn Breslow. Breslow did not consent to Wells Fargo’s use of an

autodial system to call the number. Although Breslow was the named account


       1
           Section 227(b)(1) provides, in pertinent part:
       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 telephone number assigned to a paging service, cellular 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 . . . .
       2
         The exact number of phone calls remains in dispute but is irrelevant to the resolution of
the appeal. The District Court found that at least two calls were made, and Breslow contends as
many as 1,400 calls were made to the cell phone number.

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holder for the cell phone number, she was not the primary user of the phone. The

cell phone was used exclusively by her minor child, “R.B.” 3

       On August 11, 2011, Breslow, individually and on behalf of “R.B.,” filed

suit in the District Court for the Southern District of Florida, alleging that Wells

Fargo violated the TCPA’s prohibition on autodialing cell phones without the

express consent of the called party. 4 Following discovery, Breslow filed a motion

for partial summary judgment on the issue of Wells Fargo’s liability. In response,

Wells Fargo also filed a motion for summary judgment. It accompanied its motion

with an affidavit of one of its employees, who stated that Wells Fargo had called

the cell phone number used by R.B. to collect a debt from a former customer who

had listed the phone number on a Wells Fargo account application. The affidavit

further stated that Wells Fargo was unaware that the cell phone number was no

longer assigned to the former customer and that the former customer never revoked

his consent or requested that Wells Fargo cease calling the number. Wells Fargo

argued that this former customer—the intended recipient of the autodial call—was
       3
         The record does not establish whether R.B. consented to Wells Fargo’s calling via
autodial system.
       4
          The TCPA creates a private right of action for violations of the prohibition on
autodialing. 47 U.S.C. § 227(b)(3). Successful plaintiffs are entitled to an injunction, 

actual losses caused by the violation or $500 for each violation (whichever is
greater), 

or both injunctive relief and money damages 

“If
the court finds that the defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, the court may, in its discretion, increase the amount
of the award to an amount equal to not more than 3 times the amount available under
subparagraph (B) . . . .” 

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the “called party” for purposes of § 227, and because he had consented to being

called via automatic dialing system, the TCPA’s prohibition did not apply.

       The District Court concluded that the “‘called party’ for purposes of [47

U.S.C.] § 227(b)(1)(A)(iii) was not [the] Former Customer, but the Plaintiffs,”

Breslow and R.B. Accordingly, the court granted partial summary judgment in

their favor. Wells Fargo then sought a certification for interlocutory appeal, see 28

U.S.C. § 1292(b),5 which this court granted on the issue of the proper meaning of

the term “called party.” 6

       During the pendency of this appeal, another panel of this court, faced with

the same question, concluded in a published opinion that “called party,” for

purposes of § 227(b)(1)(A)(iii), means the subscriber to the cell phone service. See

Osorio v. State Farm Bank, F.S.B., 

, 1251 (11th Cir. 2014). That



       5
           28 U.S.C. § 1292(b) (2006) provides
       When a district judge, in making in a civil action an order not otherwise
       appealable under this section, shall be of the opinion that such order involves a
       controlling question of law as to which there is substantial ground for difference
       of opinion and that an immediate appeal from the order may materially advance
       the ultimate termination of the litigation, he shall so state in writing in such order.
       The Court of Appeals which would have jurisdiction of an appeal of such action
       may thereupon, in its discretion, permit an appeal to be taken from such order, if
       application is made to it within ten days after the entry of the order
       6
        “We review the district court’s grant[] of partial summary judgment . . . de novo,
reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party,
and applying the same standard as the district court.” Allison v. McGhan Med. Corp., 

, 1306 (11th Cir. 1999).

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panel rejected the defendant’s contention that called party could mean intended

recipient. 

      “[I]t is the firmly established rule of this Circuit that each succeeding panel

is bound by the holding of the first panel to address an issue of law, unless and

until that holding is overruled en banc, or by the Supreme Court.” United States v.

Hogan, 

, 1369 (11th Cir. 1993) (en banc). Because Breslow, the

subscriber to the cell phone service, did not consent to Wells Fargo’s calling via

audial system, she is entitled to partial summary judgment.

      The District Court’s grant of partial summary judgment is, accordingly,

      AFFIRMED.




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