11th Cir. Says Attorney Called 2,000 Times on Collection of Student Debt Consented to Calls

Usually, when the Court starts out this way, it doesn’t end well for the defendant:

After Navient Solutions, LLC and its affiliate, Student Assistance Corporation (“SAC”), called Joel Lucoff’s cell phone almost 2,000 times concerning his unpaid student loan, Lucoff sued Navient and SAC alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227. The TCPA prohibits callers from making non-emergency calls using an “automatic telephone dialing system” (“ATDS”) or an “artificial or prerecorded voice” to a person’s cell phone unless the call is made with the prior express consent of the called party.

Nevertheless, in Lucoff v. Navient Sols., No. 19-13482, 2020 U.S. App. LEXIS 37868 (11th Cir. Dec. 4, 2020), the Court of Appeals for the 11th Circuit stated that it “agree[d] with the district court that Lucoff expressly consented to receive Navient and SAC’s calls [and] . . . affirm[ed] the district court’s grant of summary judgment to Navient and SAC.”  The Court of Appeals explained:

Lucoff contends that he did not reconsent to receive Navient and SAC’s calls by submitting the online demographic form which said “[b]y providing my telephone number, I authorize [Navient] to contact me at such number using any means of communication, including . . . calls placed to my cellular phone using an [ATDS] [or] calls using prerecorded messages . . . regarding any current . . . loans . . . serviced by [Navient].” Lucoff argues that submitting this language did not constitute consent because he submitted the form right after his oral revocation to the Navient representative, and the form was misleading and deceptive. Lucoff also argues that a jury should resolve this issue, rather than the district court on summary judgment. We disagree. Even if Lucoff effectively revoked his prior consent by answering “no” to the Navient representative’s questions during the phone call, he later reconsented by submitting the online demographic form.10 This case revolves around timing. Lucoff took two opposite actions (revoking consent and reconsenting) close in time to one another. After orally revoking his consent to receive certain calls from Navient, Lucoff reconsented to receive those same calls just moments later. But because the record is undisputed that Lucoff’s reconsent came after his revocation, we agree with the district court that Navient and SAC’s calls were made with Lucoff’s TCPA-required prior express consent. Lucoff first argues that Navient should have known that he did not intend to “change his mind” and reconsent so soon after revoking his consent on the phone with the Navient representative. But under common law, consent is effective regardless of whether a party “intended” to consent if his words or conduct are “reasonably understood by another to be intended as consent.” See Restatement (Second) of Torts § 892(2). It was reasonable for Navient to understand Lucoff’s submission of the consent language in the demographic form (clearly stating Lucoff authorized the calls) as Lucoff’s consent to the calls. So even if Lucoff did not want to receive ATDS or prerecorded calls, he nonetheless provided apparent consent to Navient and SAC by submitting the online demographic form that contained his cell phone number and a clear, unambiguous consent provision. See Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1308 (11th Cir. 2015) (providing a phone number on a form, even without an express consent provision, constitutes consent under the TCPA). Lucoff next argues that because he submitted the demographic form right after he answered “no” to the Navient representative’s question, Navient still knew or should have known that Lucoff did not want to receive the calls, under the “knew or should have known” standard this Court uses to determine whether consent was revoked. See Schweitzer, 866 F.3d at 1278. While it is true that Lucoff filled out the demographic form just moments after he orally revoked his prior consent, Lucoff cites no authority that this temporal proximity should require this Court to consider the separate interactions (of revoking consent and later reconsenting) as one lumped-together interaction. Accordingly, we disagree with Lucoff’s argument that the revocation of consent standard should stretch to apply to Lucoff’s later reconsent to Navient. Lucoff also argues that any reconsent gleaned from his submission of the demographic form was ineffective because the form, and the way he was directed to fill it out, were deceptive and misleading. Lucoff cites a Seventh Circuit case concerning consent to trespass for support that consent is ineffective if “procured by a misrepresentation or a misleading omission.” Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1351 (7th Cir. 1995). He points to five facts to prove that he was misled into providing his consent: (1) the form explained its purpose was to make sure Navient had “up to date records” rather than to obtain consent to call consumers; (2) the Navient representative directed Lucoff to the website (to fill out an auto debit agreement) and was still on the phone with him as he quickly submitted this form; (3) the form could not be submitted without at least one phone number being submitted because the home phone number was a required field (marked with an asterisk); (4) the consent provision was at the bottom of the form and in “fine print”; and (5) Navient auto-populated the form with information from its records. After reviewing the form, we disagree with Lucoff’s allegation that the form was misleading. The consent provision was located above the submit button and was in the same sized text as the rest of the online demographic form. Lucoff’s cell phone number was not marked as a “required field” (signified by asterisks) on the demographic form, and the information auto-filled into the form could be edited or deleted. The only reason Navient had Lucoff’s information in its records [*13]  (to autofill portions of the form) is because Lucoff had previously provided it to Navient. Thus, the form was not misleading and Lucoff cannot now escape the consequences of submitting it.