In Kolinek v. Walgreen Co., 2014 WL 518174 (N.D.Ill. 2014), Judge Kennelly granted a drug store’s motion to dismiss a TCPA claim. The Plaintiff claimed that he received autodialed calls on his cellular telephone reminding him of his prescription, to which he did not consent. Judge Kennelly disagreed, and granted the pharmacy’s motion to dismiss.
“[P]rior express consent” under the TCPA is an affirmative defense on which the defendant bears the burden of proof; it is not a required element of the plaintiff’s claim. See Thrasher–Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905 (N.D.Ill.2012); D.G. v. Diversified Adjustment Serv., Inc., No. 11 C 2062, 2011 WL 5506078, at *3 (N.D.Ill. Oct. 18, 2011); Martin v. Bureau of Collection Recovery, No. 10 C 7725, 2011 WL 2311869, at *1 (N.D. Ill. June 13, 2011); see also Grant v. Capital Mgmt. Servs., L.P., 449 Fed.Appx. 598, 600 n.1 (9th Cir.2011); Pinkard v. Wal–Mart Stores, Inc., No. 3:12–cv–02902–CLS, 2012 WL 5511039, at *2 (N.D.Ala. Nov. 9, 2012); cf. In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 565 ¶ 10 (Jan. 4, 2008) (“Should a question arise as to whether express consent was provided, the burden will be on the creditor to show it obtained the necessary prior express consent.”). As a general rule, dismissal under Rule 12(b)(6) is inappropriate when the motion to dismiss seeks to establish an affirmative defense. Dismissal is appropriate, however, when a defense is set out entirely in the plaintiff’s complaint—though the motion in this situation is better characterized as a Rule 12(c) motion for judgment on the pleadings. . . . The TCPA does not define “prior express consent.” Walgreens relies on an interpretation of the defense by the Federal Communications Commission (FCC). The TCPA authorizes the FCC to “prescribe regulations to implement the requirements” of section 227(b). 47 U.S.C. § 227(b)(2). Pursuant to this authorization, the FCC has stated the following with regard to the prior express consent defense: “P]ersons who knowingly release 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. Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.” In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992). If the FCC’s interpretation governs, Kolinek has no claim, because he admits in his complaint that he knowingly gave his cell phone number to Walgreens. And the FCC’s interpretation of the TCPA is, in fact, binding on this Court. A federal statute called the Administrative Orders Review Act, more commonly known as the Hobbs Act, reserves to the courts of appeals the power “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” all final FCC orders. See 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a). Were this Court to decline to apply the FCC’s ruling in deciding Kolinek’s case, that would be the same as invalidating the ruling, something a federal district court lacks the authority to do. The Seventh Circuit so held in CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 449–50 (7th Cir.2010). This Court does, of course, have the authority to decide whether the FCC’s interpretation of the consent defense governs this case. Id. at 450. The Court concludes it does. Kolinek argues that the FCC interpreted the statute only in a narrow and focused context, concerning businesses responding to incoming customer calls. See Pl.’s Resp. to Def.’s Mot. to Dismiss at 4. That may have been the scenario that prompted the FCC’s ruling, but the FCC responded by describing the general rule and then applying it to that scenario. The general rule—“persons who knowingly release 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”—is what bars Kolinek’s claim. His complaint does not identify any “instructions to the contrary” that he imposed at the time he provided his cell phone number to Walgreens. Finally, though Kolinek notes that his consent came ten years before the robocalls in question, see Pl.’s Resp. to Def.’s Mot. to Dismiss at 3, he does not argue that the passage of time vitiated his consent. Any such argument would fail, because consent under the TCPA does not expire on its own; it must be revoked. See Beal v. Wyndham Vacation Resorts, Inc., ––– F.Supp.2d ––––, No. 12–cv–274–bbc, 2013 WL 3870282, at *14–17 (W.D. Wis. June 20, 2013).