District Court (Minn.) Grants FRCP 12(b)(6) Motion in TCPA Case, Finding Plaintiff Could Not Limit the Scope of Her Prior Express Consent

In Steinhoff v. Star Tribune Media Co., LLC, 2014 WL 1207804 (D.Minn. 2014), Judge Nelson found that Plaintiff had consented to receive calls on her cellular telephone.

The parties dispute whether the third element of a TCPA claim is met.FN2 Defendant argues that Plaintiff gave her prior express consent to receive autodialed calls to her cellular number because she disclosed the 7646 number in order to obtain a subscription. (Def.’s Mem. in Supp. of its Mot. for J. on the Pleadings at 7 [Doc. No. 20].) Plaintiff responds that there was no prior express consent because she did not provide the 7646 number “for anything but to order and obtain information about a special offer from Defendant.” (Pl.’s Opp’n to Def.’s Mot. Pursuant to Fed.R.Civ.P. 12(c) at 18 [Doc. No. 27].)

The District Court found that Plaintiff consented to be autodialed on her cellular telephone.

The Court finds that Plaintiff’s TCPA claim is barred because she gave prior express consent. See Pinkard v. WalMart Stores, Inc., No. 3:12–cv–2902–CLS, 2012 WL 5511039 (N.D.Ala. Nov. 9, 2012); Greene v. DirecTV, Inc., No. 10 C 117, 2010 WL 4628734 (N .D.Ill. Nov. 8, 2010). In Pinkard, the plaintiff dropped off a prescription at a Wal–Mart pharmacy, where store employees asked for the plaintiff’s personal information, including her cellular number. 2012 WL 5511039, at *2. Although they did not seek explicit permission to send text messages, the plaintiff received a number of text messages from Wal–Mart within a few hours of providing her number. Id. Interpreting “express consent” to “encompass a situation where an individual voluntarily divulges her telephone number,” the court in Pinkard granted Wal–Mart’s motion to dismiss the TCPA claim because the plaintiff provided her cellular number to Wal–Mart. Id. at *5–*6. Similarly, in Greene, the court found that the plaintiff gave her prior express consent to receive the defendant’s automated call on her cellular telephone, because she provided her cellular number in the course of requesting a fraud alert, and she did not condition the use of her number for fraud alert purposes. 2010 WL 4628734, at *1–*2. In the present case, Plaintiff provided the 7646 number to Defendant in the process of obtaining a subscription. (Subscription Order Form [Doc. No. 21–1].) Although Plaintiff now claims that she provided her cellular number “for the sole purpose of having her call returned so that she could obtain more detailed information regarding this special offer,” Plaintiff does not allege that she actually instructed Defendant to this effect. (Pl.’s Opp’n to Def.’s Mot. Pursuant to Fed.R.Civ.P. 12(c) at 11 [Doc. No. 27].) Like the plaintiffs in Pinkard and Greene, Plaintiff voluntarily provided the 7646 number and therefore gave Defendant permission to contact her at this number. Absent instructions to the contrary, the Court finds prior express consent.  Plaintiff urges a reading of the FCC’s 2008 Order that requires Defendant to obtain Plaintiff’s consent specifically to be called by Defendant on her cellular number from an automatic telephone dialing system. ( Id. at 18; Nov. 25, 2013, Hr’g Tr. at 9–15.) Citing the following language from the FCC’s 2008 Order, Plaintiff believes that she did not grant prior express consent to be called about a renewal subscription because she sees her one-year subscription and any subsequent renewal as separate transactions:  We emphasize that prior 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.  In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 564–65 (Jan. 4, 2008); Nov. 25, 2013, Hr’g Tr. at 9, 18–19.)  The Court respectfully disagrees with Plaintiff’s interpretation of the FCC’s 2008 Order. First, the Court does not view the one-year subscription and any subsequent renewal as separate transactions, because a renewal here is anticipated and addressed in the original subscription agreement between the parties. Accordingly, Plaintiff’s prior express consent in connection with the original subscription applies to Defendant’s calls about its renewal. Second, the Court does not view the FCC’s 2008 Order as “limit[ing] the scope of what consent is within the realms of debt collection.” (Nov. 25, 2013, Hr’g Tr. at 18.) Rather, the 2008 Order reaffirms the FCC’s earlier position in its 1992 Order on prior express consent in the context of debt collection.

The District Court also found that Plaintiff did not revoke her consent by the automatic expiration of her newspaper subscription.

Moreover, even if Plaintiff’s subscription automatically terminated after fifty-two weeks, such termination does not automatically revoke any prior consent to be called on the 7646 number. Nothing in the FCC’s Orders supports the idea of an automatic revocation. Finally, the March 2013 conversation between the parties indicates that Plaintiff did not revoke any prior consent to be called on the 7646 number. To the contrary, when the Star Tribune representative asked Plaintiff “to pay [her] past-due balance,” Plaintiff said: “I’m in a hurry right now trying to get out the door. If you can give me a call back, like tomorrow or something, that would be wonderful.” (Audio File, Ex. B to Walker Decl. [Doc. No. 21–2].) Under these circumstances, Plaintiff clearly did not revoke her prior express consent.