District Court (Ill.) Finds Scant Facts Were Still Enough to Plead Revocation of Consent under the TCPA

In Gonnella v. Delbert Services Corporation, 2015 WL 1299364 (N.D.Ill. 2015), Judge Darrah found that a TCPA Plaintiff could plead, and had pleaded adequately, that she had revoked consent to to be called on her cellular telephone.  The facts pleaded were as follows.

The following facts are drawn from Plaintiff’s Complaint and are accepted as true for purposes of the Motion to Dismiss. See Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 763 (7th Cir.2010). Plaintiff lives in Chicago, Illinois. (Am.Compl.¶ 4.) Delbert is a Nevada corporation with its principal place of business at 7125 Pollock Drive, Las Vegas, Nevada, 89119; is a debt collector, as defined by 15 U.S.C. § 1692(a)(6); and is licensed as a collection agency in Illinois pursuant to 225 ILL. COMP. STAT.. 425/4. ( Id. at ¶¶ 5, 7, 8.) On May 27, 2014, Gonnella received a call from (909) 680–3391. ( Id. at ¶ 9.) The caller was a Delbert representative named Marvin. ( Id.) The purpose of the call was to attempt collection of an alleged debt. ( Id. at ¶ 10.) During the call, Gonnella asked that calls from Delbert cease for sixty days. ( Id. at ¶ 11.)  On June 9, 2014, Delbert was sent a fax from Gonnella’s counsel (Edelman, Combs, Latturner & Goodwin, LLC), stating, “Ladies/Gentlemen: Ms. Gonnella disputes your loan and refuses to pay it.” ( Id. at ¶ 12; Exhibit 1.) Gonnella received twelve additional calls between June 11, 2014 and July 9, 2014. ( Id. at ¶¶ 13–26.) Some calls contained a prerecorded message, and some calls left no message. ( Id.). When dialed back, the phone led to an automated message that said, “Thank you for calling Delbert Services.” ( Id. at ¶ 27.) The automated message is identical for each phone number. ( Id.)

The District Court found that the Plaintiff had adequately revoked consent.

Defendant argues that Plaintiff has failed to state a claim under the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A). The TCPA prohibits a person from making “any call … using an automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a cellular telephone service or any service for which the called party is charged for the call, unless there is prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii).  For her TCPA claim, Plaintiff must sufficiently allege that Defendant called her cell phone and that Defendant did so using an automatic telephone dialing system or an artificial or prerecorded voice. See 47 U.S.C. § 227(b)(1)(A)(iii). To qualify as an automatic telephone dialing system or an artificial or prerecorded voice under the Act, equipment “need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009). The TCPA explicitly exempts from liability autodialed calls to a cell phone “made with the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). Thus, prior express consent is an affirmative defense to an alleged TCPA violation. In re Rules Implementing the TCPA of 1991, 23 FCC Rcd. 559, 565 (2008).  In this case, the Plaintiff concedes that she initially gave the Defendant consent to contact her via her telephone; however, she asserts that she withdrew her consent. Defendant contends that consent, once given, cannot be withdrawn. (Def’s.Mot., p. 5.) Courts are split as to whether consent can be revoked, and there is no binding authority from the Seventh Circuit or the Supreme Court. However, at least some courts have determined that “consumers can revoke their consent to receive autodialer calls under the Telephone Consumer Protection Act and may do so orally.” Beal v. Wyndham Vacation Resorts, Inc., 956 F.Supp.2d 962, 979 (W.D.Wis.2013); see also Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir.2014); and Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270 (3d Cir.2013). Additionally, a primary purpose of the TCPA is to protect consumers from unwanted and invasive telephone calls. See Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 745 (2012).  Plaintiff alleges that Delbert called her cell phone twelve times after she asked them to stop, both orally and in writing. (Am.Compl., ¶ 28.) She further alleges that Defendant did so using an automatic telephone dialing system or an artificial or prerecorded voice. ( Id. at ¶ 29.) Specifically, Plaintiff alleges that on three occasions she received calls containing a prerecorded message. ( Id. at ¶¶ 13–15.) Plaintiff also alleges the third call resulted in a message being left after a “two-second pause.” ( Id. at ¶¶ 15–17.) Finally, the Plaintiff alleges that when she dialed the telephone numbers corresponding to the calls, she received an automated message indicating that the number she had called belonged to Delbert. ( Id. ¶ 27.) Plaintiff has sufficiently alleged facts showing that she rescinded her consent to receive calls from Defendant and that Defendant used an automatic telephone dialing system or an artificial or prerecorded voice.   Defendant also argues that Plaintiff is required to allege a specific telephone number allegedly called by Delbert. However, Plaintiff aleges that the calls she received were made to her cellular phone, when the calls were made, and what number the calls came from. (Am.Compl.¶¶ 9, 13–15, 18–26.) This is enough to give Defendant fair notice of the claim and its basis. Plaintiff’s specific telephone number is easily discoverable. Defendant’s Motion to Dismiss Plaintiff’s TCPA claim is denied.