Dear readers will recall our previous report on the Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), where Judge Tharpe essentially adopted the Leckler analysis and 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. (http://www.calautofinance.com/wp-admin/post.php) CCS filed a Motion for Reconsider, which Judge Tharpe denied. However, Judge Tharpe allowed CCS to appeal the matter to the 7th Circuit. Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 5389722 (N.D.Ill. 2012)
First, CCS contends that the Court failed to address a 1992 FCC Order that held that giving out a telephone number is consent to be contacted. In Re Rules & Regulations Implementing the TCPA of 1991, 7 FCCR 8752, 1992 WL 690928, at * *11 (Oct. 16, 1992) (explaining that “persons who knowingly re-lease their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary”). This argument fails for at least two rea-sons. First, the Court cited, and recited the holding of, the 1992 Order in its September 4 ruling. Memoran-dum Opinion and Order, Dkt. 86 at 6. The decision assumes, consistent with the 1992 Order, that dis-seminating one’s contact information to others is agreement to be contacted by those individuals. In-deed, the Court made it clear Thrasher–Lyon consented to receive telephone calls from the individuals to whom she gave her contact information. Id. at 9 (“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”) (emphasis added). CCS is really just taking issue with the Court’s distinction between consent to be contacted and consent to be contacted through the use equipment regulated by the TCPA. However, as the opinion explains, that distinction is required by the plain language of the TCPA, unless the FCC’s creditor-debtor rule applies. Here, it does not. Another problem with CCS’s reliance on the 1992 Order as independent grounds for a favorable decision is that Thrasher–Lyon never gave her telephone number (and thus, her consent) to Farmers, in whose shoes CCS now stands. She gave the number at the scene of the crash to the driver and a police officer; Farmers obtained the phone number from one of them, not from Thrasher–Lyon. She merely confirmed the contact information when Farmers called her with contact information it obtained from a third party. CCS is therefore off-base both in suggesting that the Court failed to acknowledge the 1992 Order and that it clearly requires judgment for CCS. ¶ CCS’s second argument, that the Court violated the Hobbs Act, also relies on the demonstrably incorrect statement that the Court somehow “ignored” or failed to heed the 1992 Order. As explained above, the summary judgment decision in fact relies upon the 1992 Order’s statement that giving out contact information is consent to be contacted. The Court simply declined to equate consent to be contacted generally with consent to the use of the equipment expressly prohibited by the TCPA, unless there is a creditor-debtor relationship established at the time the equipment is used. Again, a more careful reading of the Court’s opinion would have shown CCS that the Court acknowledged the binding nature of both the 2008 and 1992 FCC Orders. See Mem. Op. & Order, Dkt. 86, at 6 (“[T]he Court rejects CCS’s contention that this case is squarely addressed by FCC rulings that this Court cannot revisit pursuant to the Hobbs Act”) (emphasis added). The Court agreed that it lacks jurisdiction to modify or reject those rulings, but dis-agreed with CCS that the rulings required judgment in its favor. ¶ CCS’s third argument, that the Court erroneously determined that Farmers (and therefore CCS) was not a creditor within the meaning of the 2008 FCC Order, does not point to any error of law or fact. CCS simply expresses disagreement with the Court’s application of the creditor-debtor rule. CCS presents nothing new that it didn’t argue already in its summary judgment briefs, and the Court declines to revisit those arguments again. ¶ Finally, CCS advises that the Court “may compel the parties to ask the FCC to clarify the 2008 Order.” The Court is not inclined to do so. In the Court’s view, the 2008 Order requires no clarification: it applies to communications between creditors and debtors. Here, there was no “debt” or “transaction” as those terms are used in the 2008 Order or the many cases that the Court cited. See Mem. Op. & Order, Dkt. 86 at 7–8. As the Court explained, Thrasher–Lyon’s conduct in giving her number to third parties in connection with the accident did not reasonably evidence consent to be contacted by Farmers or its successor, CCS, through the use of auto-dialers and prerecorded messages. ¶ For these reasons, the Court will not reverse its ruling on the parties’ cross-motions for partial summary judgment. The motion to reconsider is denied.
However, the District Court allowed the defendant to appeal the matter to the 7th Circuit Court of Appeals:
The Court agrees with both of these decisions insofar as they require “express consent” to be explicit and not implied. Yet the Court finds no strength in numbers. The Leckler court retreated from its holding, later finding it to be barred by the Hobbs Act because the case clearly involved a consumer loan (and so fell within the debtor-creditor context of the FCC’s Orders). See Leckler v. Cashcall, Inc., 2008 WL 5000528 (N.D.Cal. Nov. 21, 2008). And in Edeh, there is no indication that the creditor-debtor rule was ever in-voked (although it appears it could have been), so the district court did not confront the issue before this Court. ¶ On the other hand, many a TCPA class action has been quashed by application of the “creditor-debtor” gloss on “prior express consent.” In its September 4 decision, the Court found those cases to be distinguishable, but the primary question on appeal would be whether the distinction is based on sound interpretation of the TCPA and the 1992 and 2008 FCC Orders. CCS’s arguments against the Court’s ruling are “substantial.” They are based upon statutory interpretations that the Court views as somewhat tortured—however, so are the FCC rulings concluding that “express consent” can sometimes be implied. And this Court, unlike the Court of Appeals, is not empowered to question those rulings. Because CCS’s statutory interpretation is plausible (particularly in light of the FCC’s infidelity to the plain language of the statute), and the Seventh Circuit has not addressed the question, the Court finds that there are substantial grounds for difference of opinion.