FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

N. L., an infant by his mother and 

natural guardian Sandra Lemos,

Plaintiff-Appellee,

v.

CREDIT ONE BANK, N.A.,

Defendant-Appellant,

and

GC SERVICES LIMITED PARTNERSHIP;

IENERGIZER HOLDINGS, LIMITED;

FIRST CONTACT, LLC, AKA Iqor 

Holdings, Inc.,

Defendants.

Nos. 19-15399 

19-15938

D.C. No.

2:17-cv-01512-

JAM-DB

OPINION

Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Submitted March 25, 2020*

San Francisco, California

Filed June 3, 2020

* The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
2 N.L. V. CREDIT ONE BANK

Before: Ronald M. Gould, Morgan Christen,

and Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress

SUMMARY**

Telephone Consumer Protection Act

The panel affirmed the district court’s judgment after a 

jury trial in favor of the plaintiff in an action under the 

Telephone Consumer Protection Act.

Defendant Credit One Bank’s vendors made automated 

calls to an eleven-year-old boy’s cell phone. Credit One was 

trying to collect past-due payments from a customer, but the 

customer’s cell phone number had been reassigned to the 

boy’s mother, who let her son use the phone as his own. The 

customer had given consent to be called, but the boy and his 

mother had not.

The TCPA exempts from liability automated calls made 

with the “prior express consent of the called party.” 

Agreeing with other circuits, the panel held that the consent 

of the person it intended to call did not exempt Credit One 

from liability under the TCPA. Accordingly, the district 

court properly instructed the jury that consent from the 

intended recipient of the call was not sufficient.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
N.L. V. CREDIT ONE BANK 3

The panel also held that, following Marks v. Crunch San 

Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), the district court 

properly instructed the jury on the definition of an 

“automatic telephone dialing system,” the use of which is 

prohibited under the TCPA. The panel noted a circuit split 

on the holding of Marks that the TCPA’s definition of ATDS 

includes a device that stores telephone numbers to be called, 

whether or not those numbers have been generated by a 

random or sequential number generator.

In a concurrently filed memorandum disposition, the 

panel addressed the district court’s award of attorneys’ fees.

COUNSEL

Noah A. Levine, Alan E. Schoenfeld, and Stephanie Simon, 

Wilmer Cutler Pickering Hale and Dorr LLP, New York, 

New York, for Defendant-Appellant.

Yitzchak Zelman, Marcus & Zelman, Asbury Park, New 

Jersey, for Plaintiff-Appellee.

OPINION

BRESS, Circuit Judge:

Over a period of four months, Credit One Bank’s 

vendors made 189 automated calls to an eleven-year-old 

boy’s cell phone. Credit One was trying to collect past-due 

payments from a customer, but, unbeknownst to the bank, 

the customer’s cell phone number had been reassigned to 

Sandra Lemos, who in turn had let her son, N.L., use the 

phone as his own. N.L. sued Credit One for the torrent of 
4 N.L. V. CREDIT ONE BANK

unwelcome calls. Among other things, he alleged that Credit 

One violated the Telephone Consumer Protection Act 

(TCPA), which makes it unlawful to call a cell phone “using 

any automatic telephone dialing system,” or ATDS, without 

the “prior express consent of the called party.” 47 U.S.C. 

§ 227(b)(1)(A).

The principal question in this case is whether Credit One 

can escape liability under the TCPA because the party it 

intended to call (its customer) had given consent to be called, 

even though the party it actually called had not. Consistent 

with every circuit to have addressed this issue, we hold that 

this argument fails under the TCPA’s text, most naturally 

read. Credit One is therefore liable under the TCPA for its 

calls to N.L. We affirm the district court in this and all 

respects.

I

Credit One is a national bank that provides credit card 

services. When its customers fall behind on payments, 

Credit One hires vendors to make collection calls to the 

delinquent cardholders. D.V. was a Credit One customer 

who, in 2014, gave the bank his consent to be called on a cell 

phone number ending in -9847 (the plaintiff here disputes 

that D.V. gave sufficient consent, but we will assume D.V. 

did so). About two years later, and without Credit One’s 

knowledge, the phone number was reassigned to Sandra 

Lemos. Lemos then allowed her minor son N.L. to use the 

number.

When D.V. fell behind on his credit card payments, three 

of Credit One’s vendors started calling the -9847 number to 

collect the outstanding amounts. The vendors ultimately 

called the number 189 times between February 20, 2017 and 

June 13, 2017. In one instance, N.L. received eight calls in 
N.L. V. CREDIT ONE BANK 5

a single day, all before noon. On another occasion, Credit 

One vendors called N.L. six times; three calls were made in 

the same hour and two were made within a minute of each 

other. To place the calls, the vendors used dialing systems 

that call specific numbers from preset lists.

N.L., acting through his mother as guardian ad litem, 

sued Credit One and its vendors for the unwanted calls, 

bringing claims under the TCPA, California’s Rosenthal 

Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et

seq., and California’s common-law tort of invasion of 

privacy. Among other things, the TCPA creates a private 

right of action to “recover for actual monetary loss from 

[unlawful communications], or to receive $500 in damages 

for each such violation, whichever is greater.” 47 U.S.C. 

§ 227(b)(3)(B).

N.L. settled with the vendors and his claims against 

Credit One were then tried before a jury. On the issue of 

consent to receive the calls, the jury heard evidence that D.V. 

had agreed to be contacted at the -9847 number and that 

Credit One’s vendors had intended to reach D.V. when they 

called that number.

At the close of trial, the parties submitted proposed jury 

instructions. Credit One asked that the jury be instructed that 

it must find for Credit One under the TCPA if Credit One or 

its vendors had “a good-faith basis to believe that they had 

consent to call N.L.’s telephone number.” Credit One also 

sought an instruction that would negate liability if the jury 

found “it was reasonable for Credit One Bank to rely on 

D.V.’s prior express consent to call the number -9847.”

The district court rejected both proposals. Instead, the 

court instructed the jury that “[t]he law requires the consent 

of the current subscriber of the called phone, in this case 
6 N.L. V. CREDIT ONE BANK

Sandra Lemos, or the consent of the nonsubscriber, 

customary user of the called phone, in this case, [N.L.]. 

Consent from the intended recipient of the call, that is, D.V., 

is not sufficient.”

After a three-day trial, the jury returned a verdict for N.L. 

on his TCPA claim, resulting in $500 in statutory damages 

for each of the 189 unwanted calls, for a total of $94,500. 

See 47 U.S.C. § 227(b)(3)(B). The jury also found for N.L. 

on his Rosenthal Act claim, awarding him $1,000 in 

statutory damages but no actual damages. The jury found 

for Credit One on N.L.’s invasion of privacy claim. Credit 

One timely appealed the judgment.

The district court subsequently denied N.L.’s post-trial 

motion for treble damages under the TCPA but granted his 

request for attorneys’ fees and costs under the Rosenthal Act. 

Credit One timely appealed the fee award, and we 

consolidated the appeals.

II

When a caller who is otherwise subject to the TCPA 

phones someone who has not consented to its calls, can the 

caller avoid liability under the TCPA’s ATDS prohibitions 

if the person it intended to call had consented to the calls? 

We have never answered this question. But the Seventh and 

Eleventh Circuits have, and they both rejected Credit One’s 

same “intended recipient” interpretation. See Osorio v. State 

Farm Bank, F.S.B., 746 F.3d 1242, 1251–52 (11th Cir. 

2014); Soppet v. Enhanced Recovery Co., 679 F.3d 637, 

639–43 (7th Cir. 2012). The D.C. and Third Circuits have 

also voiced support for the Seventh and Eleventh Circuits’ 

positions. See ACA Int’l v. FCC, 885 F.3d 687, 706 (D.C. 

Cir. 2018); Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d 316, 

325 & n.13 (3d Cir. 2015). Reviewing the district court’s 
N.L. V. CREDIT ONE BANK 7

jury instructions de novo for legal error, Navellier v. Sletten, 

262 F.3d 923, 944 (9th Cir. 2001), we agree with our sister 

circuits. Credit One’s intent to call a customer who had 

consented to its calls does not exempt Credit One from 

liability under the TCPA when it calls someone else who did 

not consent.

This follows from the language of the TCPA itself. We 

interpret the statute in accordance with its ordinary and 

natural meaning, considering the key statutory terms in the 

context in which they are used. E.g., Hall v. United States, 

566 U.S. 506, 511 (2012); Davis v. Mich. Dep’t of Treasury, 

489 U.S. 803, 809 (1989); Confederated Tribes & Bands of 

the Yakama Indian Nation v. Alcohol & Tobacco Tax &

Trade Bureau, 843 F.3d 810, 812 (9th Cir. 2016). In this 

case, Credit One’s argument founders on the more probable 

meaning of the TCPA’s term “called party,” and the 

statutory context that inescapably amplifies what Congress 

meant (and did not mean) when it used that term.

The TCPA exempts from liability those ATDSgenerated calls made with the “prior express consent of the 

called party.” 47 U.S.C. § 227(b)(1)(A). In context, the 

provision reads as follows:

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 [ATDS] or an 

artificial or prerecorded voice—
8 N.L. V. CREDIT ONE BANK

. . .

(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 . . . .

Id. § 227(b)(1) (emphasis added).

One notices that this provision nowhere references an 

“intended” recipient of the calls. Soppet, 679 F.3d at 640 

(“The phrase ‘intended recipient’ does not appear anywhere

in § 227 . . . .”). Credit One’s argument thus starts off in the 

backseat, for there is no obvious statutory text on which to 

ground an “intended recipient” interpretation. And as we 

now walk through how the undefined term “called party” is 

used in the statute, Credit One’s interpretation becomes 

more and more untenable as every statutory reference to 

“called party” is considered.

Start first with the core “consent” provision in 

§ 227(b)(1), which prohibits using an ATDS to “make any 

call (other than a call made for emergency purposes or made 

with the prior express consent of the called party).” Under 

the statute, the “call” that is “made” is the call that is 

received, for it is this received call that provides the basis for 

the private cause of action and thus civil liability. See 

generally 47 U.S.C. § 227(b). When the statute then goes on 

to create an exemption for calls made “with the prior express 

consent of the called party,” it would be odd if “called party” 

referred to some third person external to the potentially 

actionable communication, i.e., someone whom the caller 

had not in fact called, but who had previously given consent 
N.L. V. CREDIT ONE BANK 9

to be called. A “called party”—in the past tense—is at the 

very least one to whom a call was made. As the Seventh 

Circuit reasoned, “[s]uppose 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 [describe] Jones rather than Perkins [as] the ‘called 

party.’” Soppet, 679 F.3d at 641.

As we work further through the TCPA, Credit One’s 

“intended recipient” theory meets only more resistance. 

Staying within § 227(b)(1), and after the “called party” 

consent exception we have just discussed, is a list of 

telecommunication services to which the TCPA’s 

prohibitions on automatic telephone dialing systems apply. 

Id. § 227(b)(1)(A)(iii). This clause (iii) extends these 

prohibitions to various services (cell phones are among 

them) and goes on to say that it applies to “any service for 

which the called party is charged for the call.” Id. (emphasis 

added).

A “called party” that is “charged for the call” cannot be 

the “intended” but never-called person who had previously 

given consent. Instead, this “second use of ‘called party’ 

must mean [the] [c]ell [n]umber’s current subscriber, 

because only the current subscriber pays.” Soppet, 679 F.3d 

at 639. That this subsection (iii) treats “called party” as the 

current subscriber sheds light on what “called party” should 

mean in the ATDS “consent” provision of which subsection 

(iii) is a part. 47 U.S.C. § 227(b)(1)(A). We generally 

presume “that a statute uses a single phrase consistently, at 

least over so short a span.” Soppet, 679 F.3d at 639; Ass’n 

des Éleveurs de Canards et d’Oies du Que. v. Becerra, 

870 F.3d 1140, 1148 (9th Cir. 2017). One would not expect 

to find different definitions of “called party” operating so 

closely together in the same overall provision—especially 
10 N.L. V. CREDIT ONE BANK

absent any indication that a divergent interpretation was 

intended.

As we burrow deeper into the TCPA, we find several 

more references to “called party” that only further confirm 

that Credit One’s interpretation is not the best one. Section 

227(b)(1)(B) prohibits certain calls “using an artificial or 

prerecorded voice to deliver a message without the prior 

express consent of the called party.” This subsection 

parallels the § 227(b)(1)(A) “consent” provision for calls 

using “any automatic telephone dialing system,” the 

provision at issue here. The same point we made in the 

context of § 227(b)(1)(A) applies to § 227(b)(1)(B): why 

would the “consent” that could eliminate liability be given 

by some third person who is alien to the telecommunication 

that triggered the statute? Even if it were a possible 

interpretation, it is not the most likely.

Other references to “called party” in the statute likewise 

indicate that the term does not refer to the intended recipient 

of the call. Like § 227(b)(1)(A)(iii), § 227(b)(2)(C) treats 

the “called party” as the subscriber of the phone line, for it 

authorizes the Federal Communications Commission (FCC) 

to exempt from liability certain calls “that are not charged to

the called party.” (Emphasis added); see also Soppet, 

679 F.3d at 640. Another provision, § 227(b)(2)(I)(iii), 

provides that when the FCC is enacting these exemptions, it 

must ensure that the exemptions contain requirements for 

“the number of such calls that a calling party may make to a 

particular called party.” This statutory text was enacted only 

recently and after the events giving rise to this case. See 

Pallone-Thune Telephone Robocall Abuse Criminal 

Enforcement and Deterrence Act, Pub. L. No. 116-105, 

§ 8(a)(3), 133 Stat. 3274, 3283 (2019). But it too 

undermines Credit One’s theory. This new provision cross-
N.L. V. CREDIT ONE BANK 11

references § 227(b)(2)(C), which treats “called party” as the 

subscriber. See 47 U.S.C. § 227(b)(2)(I). It would be 

atypical, to say the least, if the FCC were required to issue 

regulations on the “number” of calls that can be made to a 

“particular called party” if the subject of the regulation were 

persons whom the caller had merely intended to call, but did 

not in fact ring. 

The remainder of the references to “called party” are 

found in § 227(d)(3)(B), and they also point against Credit 

One. Section 227(d)(3)(B) requires the FCC to prescribe 

rules for systems that transmit artificial or prerecorded 

messages, so that “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 called party’s line to be used to 

make or receive other calls.” The first and third references 

to “called party” in this provision more probably refer to the 

subscriber of the line; the second reference quite clearly 

refers to the person who answers, because only that person 

can “hang up.” Soppet, 679 F.3d at 640. But all these 

references to “called party” share a common characteristic: 

they would make no sense if “called party” referred to an

intended but uncalled recipient.1

1 The district court’s jury instructions shielded Credit One from 

liability if it had received the consent of either the “subscriber” or the 

“nonsubscriber, customary user of the phone,” as opposed to the 

“intended recipient of the call.” In this case, neither the subscriber 

(Lemos) nor the customary user (N.L.) gave consent to the calls, which 

is sufficient to show that the required consent was not given. We do not 

decide what the result would be if one, but not the other, had consented. 

Credit One had requested only an “intended recipient” instruction, and 

we reject its challenge on appeal by concluding that such an instruction 

is incompatible with the TCPA.
12 N.L. V. CREDIT ONE BANK

Perhaps because the statutory text stands in opposition to 

its argument, Credit One focuses more intently on perceived 

statutory purpose and the policy implications of the district 

court’s instruction. But even if these considerations could 

overcome the most natural construction of the TCPA’s 

language, N.L. still has the better of the argument. In its 

findings supporting the TCPA, Congress aimed to strike a 

“balance[]” between “[i]ndividuals’ privacy rights, public

safety interests, and commercial freedoms of speech . . . in a 

way that protects the privacy of individuals and permits 

legitimate telemarketing practices.” Telephone Consumer 

Protection Act of 1991, Pub. L. No. 102-243, § 2(9), 

105 Stat. 2394, 2394 (1991). Credit One insists that 

imposing liability on a caller that unknowingly dials a 

reassigned number would undermine the TCPA’s intended 

balance, placing companies in “constant risk of staggering 

statutory damages for calls to reassigned numbers, with no

way to know whether any particular number has been 

reassigned.”

But Credit One’s interpretation conflicts with the very 

congressional findings upon which it relies, in which 

“Congress appears to equate the ‘called party’ with the 

‘receiving party.’” Leyse, 804 F.3d at 325 n.13. In enacting 

the TCPA, Congress found that “[b]anning such automated 

or prerecorded telephone calls to the home, except when the 

receiving party consents to receiving the call . . . , is the only 

effective means of protecting telephone consumers from this 

nuisance and privacy invasion.” Pub. L. No. 102-243, 

§ 2(12), 105 Stat. at 2394 (emphasis added).

Credit One also attempts to draw support from certain 

orders of the FCC, which has authority to promulgate 

regulations implementing the TCPA. 47 U.S.C. § 227(b)(2). 

In 2015, the FCC issued an order creating a one-call safe 
N.L. V. CREDIT ONE BANK 13

harbor for callers who unknowingly dial reassigned numbers 

if they had obtained consent from the previous subscriber. 

See Declaratory Ruling & Order, In the Matter of Rules & 

Regulations Implementing the Telephone Consumer 

Protection Act of 1991, 30 FCC Rcd. 7961, 7999–8000 

(2015) (2015 FCC Order). The D.C. Circuit later vacated 

the 2015 Order’s safe harbor as arbitrary and capricious. See 

ACA Int’l, 885 F.3d at 708–09. The FCC then issued a new 

order in 2018 approving the creation of a comprehensive 

reassigned number database and adopting a safe harbor for 

callers who rely on it. See Second Report & Order, In re

Advanced Methods to Target & Eliminate Unlawful 

Robocalls, 33 FCC Rcd. 12024, 12043–45 (2018) (2018 

FCC Order). In Credit One’s view, these safe harbors weigh 

against interpreting “called party” in a way that creates strict 

liability for callers that dial reassigned numbers.

If anything, the FCC’s orders weigh against Credit One. 

If a caller’s intent could defeat liability, the safe harbors 

would be unnecessary. Moreover, and in reasoning that the 

D.C. Circuit did not reject and if anything supported, ACA 

Int’l, 885 F.3d at 706, the 2015 FCC Order expressly 

“clarif[ied] that the TCPA requires the consent not of the 

intended recipient of a call, but of the current subscriber (or 

non-subscriber customary user of the phone).” 2015 FCC 

Order, 30 FCC Rcd. at 7999 (footnote omitted). The FCC 

also “reject[ed]” proposals to “interpret ‘called party’ to be 

the ‘intended recipient’ or ‘intended called party,’” relying 

on the reasoning of the Seventh and Eleventh Circuits in 

Soppet and Osorio. Id. at 8002 & n.278. While Credit One 

relies most heavily on one dissenting FCC Commissioner’s 

views, see id. at 8077–78 (Pai, dissenting), the TCPA is best 

read in the way we have set forth above, under which Credit 

One’s preferred interpretation must fail.
14 N.L. V. CREDIT ONE BANK

Finally, contrary to Credit One’s suggestion, callers are 

not helpless absent its “intended recipient” construction. 

Here, Credit One’s vendors called an eleven-year-old boy 

nearly 200 times before determining that he was not the 

delinquent cardholder they were pursuing. In all events, the 

FCC in its 2015 order itself recognized that “caller best 

practices can facilitate detection of reassignments before 

calls,” that “there are solutions in the marketplace to better 

inform callers of reassigned wireless numbers,” and “that 

businesses should institute new or better safeguards to avoid 

calling reassigned wireless numbers and facing TCPA 

liability.” 2015 FCC Order, 30 FCC Rcd. 7999–8000. The 

Seventh Circuit in Soppet offered some work-arounds as 

well, noting (for example) that callers can avoid TCPA 

liability by “hav[ing] a person make the first call” to confirm 

a number has not been reassigned or by using “a reverse 

lookup to identify the current subscriber.” 679 F.3d at 642. 

And this is to say nothing of any further implementation of 

the FCC’s safe harbors, which may provide other 

protections. See 2018 FCC Order, 33 FCC Rcd. at 12043–

45.

In all events, whether Credit One’s “intended recipient” 

rule reflects the better balancing of competing interests is not 

for us to decide. What matters here is the balance that the 

text of the TCPA most naturally reflects. And given the 

“called party” language that Congress used in the TCPA, we 

hold that the district court’s instruction complied with the 

statute.

III

Credit One raises one additional argument under the 

TCPA that it acknowledges is foreclosed under our circuit’s 

precedent, but which Credit One wishes to preserve for 

further review. This argument concerns the definition of 
N.L. V. CREDIT ONE BANK 15

“automatic telephone dialing system,” or ATDS. The TCPA 

prohibits the use of an ATDS, except in certain 

circumstances (consent of the “called party” being one of 

them). 47 U.S.C. § 227(b)(1). The TCPA defines an ATDS 

as “equipment which has the capacity—(A) to store or 

produce telephone numbers to be called, using a random or 

sequential number generator; and (B) to dial such numbers.” 

Id. § 227(a)(1).

The district court instructed the jury: “The term 

[a]utomatic telephone dialing system means equipment 

which has the capacity, one, to store numbers to be called; 

or two, to produce numbers to be called using a random or 

sequential number generator and to dial such numbers.” 

(Emphasis added). Accordingly, under the challenged 

instruction, a device qualifies as an ATDS if it can store 

numbers and dial them—even if it cannot produce numbers 

using a random or sequential number generator.

Credit One maintains that this instruction misstates the 

TCPA’s requirements because, in its view, a device must be 

able to generate random or sequential telephone numbers to 

qualify as an ATDS. And Credit One contends that the 

district court’s jury instruction was prejudicial because there 

was no evidence that its systems could produce and dial 

random or sequential numbers. As Credit One 

acknowledges, however, the district court followed our 

decision in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 

(9th Cir. 2018), which held that the TCPA’s “definition of 

ATDS includes a device that stores telephone numbers to be 

called, whether or not those numbers have been generated by 

a random or sequential number generator.” Id. at 1043.

There is an acknowledged circuit split on this issue. Our 

decision in Marks parted ways with the Third Circuit’s 

decision in Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d 
16 N.L. V. CREDIT ONE BANK

Cir. 2018). See Marks, 904 F.3d at 1052 n.8. Subsequently, 

the Seventh and Eleventh Circuits issued forceful decisions 

disagreeing with Marks. See Gadelhak v. AT&T Servs., Inc., 

950 F.3d 458, 466–67 (7th Cir. 2020); Glasser v. Hilton 

Grand Vacations Co., 948 F.3d 1301, 1306–13 (11th Cir. 

2020). Most recently, the Second Circuit weighed in on the 

side of Marks. See Duran v. La Boom Disco, Inc., 955 F.3d 

279, 281 n.5 (2d Cir. 2020).

The ATDS definitional issue is a difficult one, but the 

issue before us is not: as a three-judge panel, we are bound 

by Marks, as Credit One agrees. See, e.g., Multi Time Mach., 

Inc. v. Amazon.com, Inc., 804 F.3d 930, 936 n.2 (9th Cir. 

2015). Because the jury instruction on the definition of 

ATDS is consistent with Marks, Credit One’s challenge to 

that definition fails.2

AFFIRMED.

2 In a separate memorandum disposition filed concurrently with this 

opinion, we reject Credit One’s challenge to the district court’s award of 

attorneys’ fees.