10th Cir. Holds in Unpublished Decision that TCPA Express Consent Need Not Be in Writing; Need Not Obtain Consent to be “Autodialed”

In Sartori v. Susan C. Little & Associates, P.A.,— Fed.Appx. —-, 2014 WL 3302588 (10th Cir. 2014), the Tenth Circuit Court of Appeals – in an unpublished case involving a pro per Plaintiff — held that a TCPA defendant need not show either that consent was obtained in writing or that the consumer had to consent to be autodialed.

Sartori based his TCPA claim on 47 U.S.C. § 227(b)(1)(A)(iii), which in relevant part renders it unlawful “to make any call (other than … with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service.” Sartori challenges the district court’s ruling that he had provided prior express consent to BANA to make such calls when he had given BANA his cellphone number as a contact number for his account in February 2009 in the normal course of business. Sartori claims that an established business relationship is insufficient to show consent under 47 C.F.R. § 64.1200(a)(1). He also argues that consent must be express, in writing, and specifically authorize the use of autodialed and prerecorded-voice calls to a cell phone. ¶ We need not resolve whether an “established business relationship” constitutes the prior consent necessary under the statute because the district court did not rely on that test.FN5 Although the court mentioned the similar phrases “normal course of business” and “normal business communications,” R., Vol. 2 at 822–23, it relied on a declaratory ruling issued by the Federal Communications Commission (FCC) in 2008. In that ruling, the FCC determined that autodialed and prerecorded-voice calls are permissible when made “to wireless numbers provided by the called party in connection with an existing debt.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564 (2008). The FCC explained “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.” Id. With its summary judgment motion, BANA provided the affidavit of one of its assistant vice-presidents, Daniel Leon, who stated that BANA’s records showed Sartori called BANA in February 2009 and gave his cell phone number because “BANA was unable to reach him at the prior number listed on the account.” R., Vol. 2 at 443. Under the FCC ruling, this constituted the “prior express consent” required by 47 U.S.C. § 227(b)(1)(A), and there is no indication Sartori revoked that consent. Like the statute and the FCC ruling, the regulation Sartori cites, 47 C.F.R. § 64.1200(a)(1), requires only “prior express consent”; it does not require that consent to be in writing.