District Court (Minn.) Says Lack of Express Consent is TCPA Plaintiff’s Pleading Burden

In Zean v. Fairview Health Services, 2016 WL 740412, at *3 (D.Minn., 2016), Judge Magnuson found that lack of consent was part of a TCPA Plaintiff’s pleading obligation, and then found that the Plaintiff’s providing his cell phone number constitute express consent to receive telemarketing calls.

Elkins found support in the decisions of “one circuit court and many district courts,” none of which are in the Eighth Circuit, that “have concluded that consent is an affirmative defense that must be pleaded and proven by the defendant.” Elkins, 2014 WL 1663406 at *6. However, the Elkins court also noted that the Eighth Circuit Court of Appeals has not addressed the issue whether the plaintiff or the defendant has the burden of proving prior express consent.  The plain language of the TCPA classifies lack of prior express consent as an element of a prima facie TCPA claim:  “It shall be unlawful for any person … to make any call (other than a call made for emergency purposes or made 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 … cellular telephone service.” 47 U.S.C. § 227(b)(1)(A). Fairview argues that Steinhoff v. Star Tribune Media Co., LLC confirms this reading of the statute. No. 13cv1750, 2014 WL 1207804, at *1 (D. Minn. Mar. 24, 2014) (Nelson, J.) (granting judgment on the pleadings in TCPA action involving newspaper subscription). Under Steinhoff, to establish a prima facie claim under the TCPA, Zean must prove that: “(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Id. at *2. The Court agrees with Fairview that lack of prior express consent is an element of Zean’s prima facie case under the TCPA, rather than an affirmative defense.