District Court (N.Y.) Says Consent to Call Cell Phone Under TCPA Can Occur During Account History and Revocation of Consent Must Be In Writing, but Denies MSJ Based on Evidentiary Issues

In Moore v. Firstsource Advantage, LLC,  2011 WL 4345703 (W.D.N.Y 2011), Judge Skretny held that triable issues of fact on consent and revocation of same prevented granting of summary judgment arising out of calls containing a prerecorded message made to a consumer’s cellular telephone.  As to the issue of consent, Judge Skretny held that consent can be given at any time during the Account’s history, but the defendant failed to establish that consent was in fact given. 

Any calls made to Plaintiff’s cell phone number using an ADTS or an artificial or prerecorded voice would run afoul of the TCPA unless Defendant had “prior express consent” to call the number in question. 47 U.S.C. § 227(b)(1)(A)(iii).  Plaintiff argues Defendant never had “prior express consent” to make automated or prerecorded calls to her cell phone for collection purposes. Plaintiff contends that, under the FCC’s ruling, a contact number must have been given at the time of the application for services to constitute “prior express consent” to call that number. Here, there is no proof that the phone number in question was provided at the time the Holling Drive account was activated, as opposed to some later time.  Nowhere in the FCC’s ruling did it state that a phone number must be given at the time the account is opened to constitute “prior express consent.” Instead, the FCC stated:  “[P]rior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.: FCC 07–232, at 6–7 (emphasis added). Although the FCC did not define the exact parameters of the phrase “during the transaction that resulted in the debt owed,” a commonsense reading of that phrase does not lead to the conclusion that a phone number must be given at the precise time the account is activated. Moreover, given that the FCC emphasized that the relevant issue in evaluating “prior express consent” is whether a phone number has voluntarily been provided to the creditor, it would strain logic to conclude that a debtor’s voluntary provision of a contact number at the time an account is opened would constitute “prior express consent” to be called at that number, but that the equally voluntary provision of a contact number sometime after the account is opened would not. See id. at 6 (“[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”) (quoting the FCC’s 1992 TCPA Order, 7 FCC Rcd. at 8769, para. 31). ¶  Keeping in mind that certain evidence has been stricken from the record, as discussed above, the record reveals that (1) it was Time Warner’s (and its predecessor Adelphia’s) general practice to obtain a contact phone number from a client when that client opened a cable account (Rogers Aff. ¶ 8); (2) neither Time Warner nor Adelphia would perform an independent investigation in an attempt to locate contact information for a subscriber (Rogers Aff. ¶ 10); and (3) the number provided by Time Warner to Defendant upon transferring the Holling Drive account for collection purposes was (716) 578–6206 (Pl.’s Statement I ¶ 7). Thus, at some point between the account’s activation and its referral to Defendant, Time Warner obtained the (716) 578–6206 number in connection with the account.  ¶  However, there is a gap in the proof regarding how Time Warner obtained this phone number. In particular, Plaintiff has questioned the credibility of Mr. Rogers’ description of Time Warner’s general practices with respect to obtaining client contact information. Additionally, the evidence does not establish that the phone number in this case was voluntarily provided to Time Warner either by Mia Moore, Plaintiff, or someone else. In light of the fact that Defendant bears the burden of proof on the question of “prior express consent,” FCC Ruling 07–232 at 7, this Court finds that a genuine issue of material fact remains regarding whether Defendant ever had “prior express consent” to call the number in question.

The Plaintiff also claimed that she orally revoked consent.  The Court found that consent must be revoked in writing, and oral revocation is ineffective.

Plaintiff also contends that, even if Defendant did have “prior express consent” to call the phone number in question, Plaintiff revoked that consent during her June 29, 2007 call to Defendant, during which she requested that the calls to her cell phone stop. Plaintiff asks for summary judgment on her TCPA claims for all autodialed or prerecorded calls to her cell phone after that date.  ¶  In two related cases in this District, it has been held that a verbal request to cease debt collection calls to a cellular phone will not be sufficient to revoke “prior express consent” under the TCPA. Moltz, 2011 WL 3360010, at *5 (because Congress has stated that debt collection efforts are governed by the FDCPA, when calls to a cell phone are made for debt collection purposes, the FDCPA’s requirement that a request to stop the calls be made in writing applies); Starkey v. Firstsource Advantage, LLC, Case No. 07–CV662A, 2010 WL 2541756, *6 (W.D.N.Y. Mar.11, 2010) (same). See also Cunningham v. Credit Mgmt., L.P., 2010 WL 3791104, *5 (N.D.Tex. Aug.30, 2010) (following Starkey ); but see Gutierrez v. Barclays Group, 2011 WL 579238, *4 (S.D.Cal. Feb.9, 2011) (holding that verbal revocation of consent to debt collection calls to a wireless number is sufficient under the TCPA).  ¶  Here, it is undisputed that Plaintiff never sent a written cease-and-desist request to Defendant. (Def.’s Statement II ¶ 26; Pl.’s Statement II ¶ 26.) As such, if “prior express consent” was given to Defendant, it was not legally revoked by Plaintiff. In sum, genuine issues of material fact exist with respect to whether Defendant used prohibited methods in calling Plaintiff’s wireless number, and with respect to whether Defendant had “prior express consent” to call that number using those methods. The parties’ motions for summary judgment on the TCPA claim will be denied.