District Court (Utah) Finds Debtor’s Inclusion of Cellular Telephone Number in Letter Disputing the Debt Constituted “Prior Express Consent” to be Called on that Number by the Creditor and Its Debt Collector under the TCPA at the FRCP 12(b)(6) Stage

In Wills v. Optimum Outcomes, Inc., 2014 WL 220707 (D.Utah 2014), Judge Warner found that a TCPA Plaintiff failed to state a claim against a medical debt collector because the Plaintiff had given his cellular telephone number in a letter to the Creditor.

At some point in the past, Plaintiffs received services from InterMountain Healthcare, which in turn hired Defendant to collect money that Plaintiff owed to InterMountain Healthcare stemming from those services. In their complaint, Plaintiffs allege that Defendant violated the FDCPA by continuing to contact Plaintiffs after Plaintiffs sent InterMountain Healthcare and/or Defendant a letter (“Letter”) FN5 that (1) disputed the debt and requested a validation of the debt,FN6 see 15 U.S.C. § 1692g(b); and (2) requested that Defendant cease collection “or” stated that Plaintiffs refused to pay the debt,FN7 see 15 U.S.C. § 1692c(c). Finally, Plaintiffs allege that they received phone calls from Defendant using an automatic telephone dialing system, in violation of the TCPA.  Plaintiffs admit that, in the Letter, they provided a cellular phone number to InterMountain Healthcare and/or Defendant.

Judge Warner dismissed the TCPA claim, finding that the Plaintiff had given prior express consent to be called on the cellular telephone number.

As indicated by that statutory language, there is no violation of the TCPA if the called party provided his or her express consent to receive auto-dialed or prerecorded message calls on his or her cellular phone. See id. As Defendants have noted, the Federal Communications Commission (“FCC”) has clarified what constitutes “express consent” under the TCPA. The FCC has done so pursuant to its authority to create rules and regulations implementing the TCPA. See 47 U.S.C. § 227(b)(2). The FCC issued a declaratory order, which provides:   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 a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt…. Calls placed by a third party collector on behalf of [a] creditor [to whom or which prior express consent was provided] are treated as if the creditor itself placed the call.  In re Rules Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, ¶ 9–10 (2008) (footnotes omitted).. . . .Pursuant to those authorities, when a debtor provides his cellular phone number to a creditor, that debtor provides express consent to receive auto-dialed or prerecorded message calls on that cellular phone from both the creditor and the creditor’s third-party debt collector. In the Letter, Plaintiffs provided the cellular phone number to InterMountain Healthcare, the creditor. In doing so, Plaintiffs provided their express consent to receive calls on their cellular telephone from InterMountain Healthcare and Defendant, InterMountain Healthcare’s debt collector. See id.; see also, e.g., Saunders v. NCO Fin. Sys., 910 F.Supp.2d 464, 467 (E.D.N.Y.2012); Pinkard v. Wal–Mart Stores, Inc., No. 3:12–cv–02902–CLS, 2012 U.S. Dist. LEXIS 160938, at * 11–16 (N.D.Ala. Nov. 9, 2012). Because Plaintiffs provided their express consent to receive such calls, Plaintiffs cannot establish that Defendant’s calls to that number violated the TCPA. Accordingly, Plaintiffs’ cause of action under the TCPA is dismissed.