District Court (Cal.) Imposes TCPA “Consent” Pleading Burden on Defendant; Says Merely Providing Cell Phone Number in Initial Transaction is Not Express Consent Because Express Consent Must Be “Clearly and Unmistakably Stated”

In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Absence of consent is not a pleading requirement imposed on a TCPA plaintiff.

Hilton also moves to dismiss the complaint on the basis that the named Plaintiffs lack standing because each “consented to receive the subject calls by giving the Hilton family his/her cellular telephone numbers.” (MTD 13, ECF No. 6) Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs’ TCPA claim. See 23 F.C.C.R. 559, 565 (Dec. 28, 2007) (“[W]e conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent.”); Ryabyshchuk v. Citibank (South Dakota) NA, 2011 U.S. Dist. LEXIS 136506, at *14–15 (S.D.Cal. Nov. 28, 2011) (Gonzalez, C.J.) (“[T]he FCC recognized the heavy burden a consumer might face in trying to prove that he did not provide prior express consent.”); Gutierrez v. Barclays Grp., 2011 U.S. Dist. LEXIS 12546 (S.D.Cal. Feb. 9, 2011). Thus, Plaintiffs’ complaint need not allege the absence of consent, and “[a]ccordingly, a motion for summary judgment—rather than a motion to dismiss—is the proper place for the [defendant] to establish that the [Plaintiffs’] claim fails due to the presence of prior express consent.” Ryabyshchuk, 2011 U.S. Dist. LEXIS 136506, at *14–15. Hilton’s motion to dismiss on this basis is therefore DENIED.

Judge Sammartino also held that merely providing the cellular telephone in the initial transaction is not enough – consent to be called must be clearly given.

Regarding the booking of reservations, Hilton has failed to explain how the mere registration of a cellular telephone number at the time of booking a hotel res-ervation constitutes prior express consent for the tel-ephone calls at issue here. “Express consent is ‘[c]onsent that is clearly and unmistakably stated.’ “ Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir.2009) (quoting Black’s Law Dictionary 323 (8th ed.2004)). Unlike the HHonors Program application, Hilton points to no evidence that in booking a hotel reservation Merritt agreed to Hilton’s terms and conditions, including the possibility that contact information might be used to make special offers or promotions by telephone. Without more, the Court cannot conclude that one who provides a contact telephone number in booking a hotel reservation is “clearly and unmistakably” consenting to receive promotional calls. Id.

Judge Sammartino also held that the Plaintiff had adequately pleaded the use of an ADAD by the defendant.

According to Hilton, “Plaintiffs’ Complaint provides little information beyond the unsupported conclusion that ‘Hilton Grant Vacations used an ‘automatic telephone dialing [system]’ as prohibited by [the TCPA].’ “ (MTD 18, ECF No. 6 (quoting (Compl. ¶ 13, ECF No. 1))) Although this allegation by itself might be insufficient, Plaintiffs supplement it with allegations that support a reasonable inference that Hilton used an automatic system. Knutson v. Reply!, Inc., 2011 U.S. Dist. LEXIS 7887, at *5 (S.D.Cal. Jan. 26, 2011) (citing Kramer v. Autobytel, Inc., 2010 U.S. Dist. LEXIS 137257, at *13 (N.D.Cal. Dec. 29, 2010)) (“While it may be difficult for a plaintiff to know the type of calling system used without the benefit of discovery, the court [may] rel[y] on allegations about the call to infer the use of an automatic system.”). Here, Plaintiffs allege that “[t]he calls had a delay prior to a live person speaking to Plaintiffs or did not even transfer to a live person (resulting in silence on the other end of the phone), indicating that Hilton Grant Vacations placed the calls using an automatic telephone dialing system.” (Compl. ¶ 13, ECF No. 1) The Court finds that these allegations “allow[ ] the court to infer the calls were randomly generated or impersonal.” Id. at *6. ¶ Hilton further argues that because “Hilton only called persons with a Hilton family account and existing or prior relationship with Hilton,” this “necessarily defeats any claim that the marketing calls were made via a ‘random or sequential number generator.’ “ (MTD 18, ECF No. 6) Although Plaintiffs do not directly address this argument in their opposition brief, the Court finds that dismissal of the complaint on this basis is not warranted. “When evaluating the issue of whether equipment is an [automatic telephone dialing system], the statute’s clear language mandates that the focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’ “ Satterfield, 569 F.3d at 951 (quoting 47 U.S.C. § 227(a)(1)). Even accepting Hilton’s assertion that its marketing calls were made only to persons within the “Hilton family,” and that therefore the calls were made from an existing list of telephone numbers rather than via a random or sequential number generator, Hilton “has not adequately demonstrated that this would absolve them of liability under the statute, given that such a machine could arguably be said to ‘store … telephone numbers to be called, using a random or sequential number generator.’ “ In re Jiffy Lube Int’l, Inc., 2012 U.S. Dist. LEXIS 31926, at * 18–19 n. 8 (S.D.Cal. Mar. 8, 2012). Indeed, Hilton’s argument on this point is limited to a single sentence, with no citing authority.