District Court (Ill.) Finds “Express Consent” Under TCPA Requires More Than Merely Providing Cell Number; Requires Consent to be “Robo-called”

In Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), Judge Tharpe held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA.  Judge Tharpe found that the consumer had to consent to be ‘robo-called’.

In this putative class action brought pursuant to the Telephone Consumer Protection Act, the named plaintiff, Melissa Thrasher–Lyon, alleges that Credit Collection Services Commercial (“CCS”) unlawfully placed robocalls to her cellular telephone in con-nection with an insurance subrogation claim that Farmers Insurance referred to CCS for collection. As an affirmative defense, CCS pleaded that it had Thrasher–Lyon’s prior express consent to receive its calls on her cell phone. See 47 U.S.C. § 227(b)(1)(A)(iii). Both parties have moved for partial summary judgment on this affirmative defense.

The Court found that because Farmers was collecting on a subrogation claim, not on a ‘consensual’ debt, that ‘consent’ under the TCPA required not just consent to be called on a cellular telephone but consent to ‘robocalled’.

If there were any doubt on this score, interpreting “prior express consent” to require consent to robocalls, not just consent to receiving telephone calls, is also consistent with the Congressional findings accompanying enactment of the TCPA. In particular, the findings state that automated calls and prerecorded messages are a “nuisance,” an “invasion of privacy,” and “when an emergency or medical assistance telephone line is seized, a risk to public safety.” See Pub.L. 102–243, § 2, ¶¶ 5–6, 9–10, 13–14, 105 Stat 2394 (1991). Moreover, “[t]echnologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer.” Id. ¶ 11. At bottom, then, the TCPA bans calls using automated technology to protect consumers, placing the burden on the technology users rather than the consumers, who are ill-equipped to mitigate the nuisance. See Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1011 (N.D.Ill.2010) ( “[T]he TCPA serves a significant government interest of minimizing the invasion of privacy caused by unsolicited telephone communications to consumers.”). This protective purpose, and its implementation by way of restricting the use of certain technology, further supports the view that the consumer must give “prior express consent” to robocalls-not to telephone calls in general-if they are to receive the automated calls that the legislature deemed invasive.  ¶  . . . CCS insists that it would be “bizarre” to interpret the statute to require “elaborate” consent using “magic words,” but there is nothing bizarre about giving effect to all of the words in the statutory language. It is what courts are required to do. Bizarre would be to read “express consent” as “implied consent.” In ordinary parlance, there is no such thing as “implied express consent”—that is an oxymoron. Giving out one’s phone number, at least outside of the special relationship sanctioned by the FCC, is not “express” consent to besiegement by automated dialing ma-chines. One “expresses” consent by, well, expressing it: stating that the other party can call, or checking a box on form or agreeing to terms of service that explicitly permit automated telephone contact. See Satterfield v. Simon & Schuster, 569 F.3d 946, 955 (9th Cir .2009) (“Express consent is consent that is clearly and unmistakably stated.”) (citation omitted). “Express” connotes a requirement of specificity, not “general unrestricted permission” inferred from the act of giving out a number, as CCS urges. Agreeing to be contacted by telephone, which Thrasher–Lyon effectively did when she gave out her number, is much different than expressly consenting to be robo-called about a debt she did yet know Farmers believed she owed. ¶ . . . For all these reasons, the Court concludes that, as to Thrasher–Lyon, CCS cannot avail itself of the statutory exception for robocalls placed with prior express consent. As a matter of law, Thrasher–Lyon’s provision of her telephone number to the Ferguson, the police, and Farmers was not prior express consent to receive CCS’s robocalls on her cellular phone. Moreover, CCS has failed to establish with admissible evidence that at the time of the robocalls, Farmers was Ms. Thrasher’s creditor for purposes of the FCC’s creditor-debtor rule, which therefore does not apply here. Accordingly, the Court GRANTS the plaintiff’s motion for partial summary judgment and DENIES the defendant’s motion for partial summary judgment.