District Court (Fla.) Says Triable Issue of Fact Whether TCPA Plaintiff Gave Consent to be Autodialed on Her Cell Phone

In Orr v. Credit Protection Ass’n, L.P., 2015 WL 439343 (M.D.Fla. 2015), Judge Corrigan denied summary judgment on the basis that a triable issue of fact existed as to whether a TCPA customer had, in fact, given consent to be autodialed on her cellular telephone.

The key issue is therefore whether either Mr. or Mrs. Orr provided prior express consent to call Mrs. Orr’s cell phone.FN1 Under the TCPA, consent is an affirmative defense; thus, CPA has the burden of demonstrating that it had consent. See Osorio, 746 F.3d at 1253 (noting that, to benefit from the consent exception, the defendant must demonstrate consent). Where a consumer provides her wireless number to a creditor “during the transaction that resulted in the debt owed”, she has consented to receive auto-dialed calls and prerecorded messages on that number. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 564–65 (2008). Thus, where a customer provided Comcast with his cellular telephone number at the time that Comcast set up his cable service, he provided express consent under the TCPA. Johnson v. Credit Prot. Ass’n, L.P., No. 11–80604–CIV, 2012 WL 5875605, at *4 (S.D.Fla. Nov. 20, 2012). Where instead a customer only provided his phone number to a business in conjunction with cancelling services, he did not provide consent to receive calls about a balance that accumulated prior to the cancellation. See Nigro v. Mercantile Adjustment Bureau, LLC, 769 F.3d 804, 805 (2d Cir.2014).  [FN1. CPA argued extensively that, if Mr. Orr provided prior express consent to call Mrs. Orr’s cell phone, his consent would be sufficient under the TCPA. (Doc. 25 at 22–24; Doc. 26 at 9–11). Mrs. Orr does not appear to contest that Mr. Orr was capable of providing prior express consent for CPA to call her cell phone. (Doc. 27 at 8–9). As the issue appears to be undisputed, the Court will consider Mr. Orr’s consent to be equivalent to Mrs. Orr’s consent for the purposes of this Order.]  As there is an issue of material fact as to whether the Orrs provided Mrs. Orr’s cell phone number to Bright House and, if they did so, whether it was during a transaction that resulted in the debt owed, neither party is entitled to summary judgment on Count One. However, the TCPA claim in Count One does not include the fourteen calls made after the filing of the Complaint.