9th Cir. Says TCPA “Consent” Not Part of Plaintiff’s Prima Facie Case, but Defendant’s Affirmative Defense

The Court of Appeals for the Ninth Circuit held in an unpublished decision, Grant v. Capital Management Services, L.P., 449 Fed.Appx. 598, 2011 WL 3874877 (9th Cir. 2011), that the Plaintiff need not plead consent as part of its prima facie case; the defendant bears that burden.  The unpublished decision dealt with whether the District Court erred in remanding the TCPA case under CAFA, which the Court of Appeals held that it did.  As to the pleading requirement, the Court of Appeals noted:

Calls otherwise in violation of the TCPA are not unlawful if made “for emergency purposes or made with the prior express consent of the called party,” 47 U.S.C. § 227(b)(1)(A); however, “express consent” is not an element of a TCPA plaintiff’s prima facie case, but rather is an affirmative defense for which the defendant bears the burden of proof. See 23 F.C.C.R. 559, 565 (Jan. 4, 2008) (“[W]e conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent.”).