In Sengenberger v. Credit Control Services, Inc. 2010 WL 1791270 (N.D.Ill. 2010), Judge Zagel found unlawful certain pre-recorded calls made to a consumers cellular telephone.
The TCPA prohibits the use of a prerecorded voice when making calls to a cell phone. 47 U.S.C. § 227(b)(1). Specifically, the TCPA states that it is unlawful for a person: “(A) to make any call (other than a call made for emergency purposes or with the prior express consent of the called party) using any automatic telephone dialing system or 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. 47 U.S.C. § 227(b)(1)(A)(iii). ¶ The prohibition does not apply if the called party consented to receive auto-dialed and prerecorded message calls on their cell phone. The Federal Communications Commission (“FCC”) regulation governing debtor consent states that: “ Because we find that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the “prior express consent” of the called party, we clarify that such calls are permissible. We conclude that the provision of a cell phone number to a creditor, e.g., as part of credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt. FCC 07-232, 9. ¶ Calls placed by a third-party collector on behalf of that creditor [to whom prior express consent was provided] are treated as if the creditor placed the call. Id. at 10. The defendant bears the burden of proof with respect to “prior express consent.” U.S. v. First City Nat. Bank of Houston, 386 U.S. 361, 366 (1967) (where one claims the benefit of an exception to the prohibition of a statute, that party carries the burden of proof); see also In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, FCC 07-232, CG Docket No. 02-278 (Dec. 28, 2007) (“To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent. The creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications.”) The TCPA authorizes recovery of either the actual monetary loss or statutory damages of $500 for each violation, whichever is greater. 47 U.S.C. § 227(b)(3). ¶ It is undisputed that Plaintiff provided his cell phone number to Dr. Munoz. Dr. Munoz then provided this number to Quest, and Quest provided the number to Defendant. What is at issue here, is whether Plaintiff provided statutory consent to Defendants when he gave his telephone number to Dr. Munoz.
Judge Zagel held that it did not. As to the pre-recorded, messages, Judge Zagel stated as follows:
Pursuant to authority granted by the TCPA, the FCC has proscribed regulations regarding prerecorded telephone messages. 47 U.S.C. § 227(b)(2). Specifically, 47 C.F.R. 64.1200(b)(1) states: “(b) All artificial or prerecorded telephone messages shall: (1) At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with State Corporation Commission (or comparable regulatory authority) must be stated.” ¶ The FCC further provided that: “With respect to the caller’s name, the prerecorded message must contain, at a minimum, the legal name under which the business, individual or entity calling is registered to operate. The Commission recognizes that some businesses use “d/b/as” or aliases for marketing purposes. The rule does not prohibit the use of such additional information, provided the legal name of the business is also stated.” Rules and Regulations Implementing the Telephone Consumer Protection Act ( TCPA) of 1991; Final Rule, FR Doc 03-18766, 68 Fed.Reg. 143, pg. 44163. ¶ It is undisputed that Defendant’s message to Plaintiff identified “Credit Collection Services” as the caller. It is also undisputed that Defendant’s legal name is “Credit Control Services, Inc.” Defendant does business as “Credit Collection Services,” and “Credit Collection Services” is an assumed name registered with the Illinois Secretary of State. That name is also listed on Credit Control Services, Inc.’s license pro-vided by the Illinois Department of Financial and Professional Regulation. ¶ The Federal Communications Commission is explicit in its statement that the legal name of a business must be provided in any pre-recorded message. While the d/b/a name can be mentioned in the phone call, it must be in conjunction with the entity’s legal name. It is undisputed that Defendant’s legal name is Credit Control Services, Inc. and it is further undisputed that Defendant did not provide its legal name to Plaintiff in its prerecorded message. Accordingly, I grant Plaintiff’s motion for summary judgment as to counts twenty-seven through thirty-five.