District Court (NY) Denies Defendant Summary Judgment in TCPA Case for Absence of Dispositive Proof of Consent

In Sharp v. Allied Interstate Inc., 2014 WL 1224656 (W.D.N.Y. 2014), Judge Skretny denied summary judgment to a defendant collecting on a cellular telephone bill due to a failure to prove consent.

This Court has previously ruled that a consumer has consented to calls even if the cell phone number was not provided at the time the account was opened. “It would strain logic to conclude that a debtor’s voluntary provision of a contact number at the time an account is opened would constitute ‘prior express consent,’ ” this Court wrote in a 2011 decision, “but that the equally voluntary provision of a contact number sometime after the account is opened would not.” Moore v. Firstsource Advantage, LLC, 07–CV–770, 2011 WL 4345703 (W.D.N.Y. Sept.15, 2011)  Although Allied does not know how it got the number, it argues that because neither Allied nor DirecTV have a policy of “harvesting”—or independently seeking out—phone numbers not previously provided to it, Allied must have got Sharp’s cell phone number from either Sharp or Verizon. It further argues that, in accordance with FCC rulings, Sharp consented to robo calls by providing his cell number to Verizon. Relying on Moore, it contends that the time at which he consented is immaterial; his admission that he provided Verizon with the number at some point is sufficient to demonstrate consent  But initially troubling is Allied’s assumption that Sharp’s provision of his cell number to Verizon constitutes permission for DirecTV (and its agent, Allied) to call Sharp at that number. As noted, the FCC deems consent to be granted “only if the wireless number was provided by the consumer to the creditor.” 23 F.C.C.R. at 564. Although neither party explains why DirecTV sought to collect the alleged debt when Sharp’s bill was payable only to Verizon, ( see Perry Dep. 14:2–9, 15:5–7), regardless of the explanation, there is no dispute that it was DirecTV—and not Verizon—that sought to collect the outstanding balance of $86.96. Aside from speculation that the number came from Verizon or Sharp, Allied and DirecTV cannot say definitely how it got the cell phone number. (Topazio Dep., 8:15–9:14; Miller Dep. 31:13–19, 32:10–15.) In fact, Allied admits that if it knew the number was connected to a cell phone, it would not have placed the autodailed calls. (Miller Dep. 46:8–18.) And of course Sharp disputes ever disclosing the number to DirecTV. Allied provides no authority—or even an argument—for the proposition that consent for Verizon equates to consent for DirecTV. Of course, it could be argued that, if the number was given in connection with the telecommunications bundle purchase, DirecTV and Verizon could be considered synonymous for purposes of the TCPA. Indeed, there is no dispute that Sharp knew he was engaging the services of both Verizon and DirecTV when he registered for the new package. That argument could have been made; it was not. And it leads to the next problem: no one knows when Sharp provided the cell number to Verizon.  Of course, Sharp admits that he did disclose that number. But that admission is not as dispositive as Allied suggests. Sharp admits only that— at some time—he provided his cell phone to Verizon as an alternate number. But Sharp had Verizon telephone service long before he entered into a bundle package with DirecTV in May of 2007. ( See Sharp Dep. 9: 1–12.) If Sharp provided the number to Verizon before that date, it cannot be said that the number was “provided during the transaction that resulted in the debt owed.” See 23 F.C.C.R. at 564–65.  Much, then, is left to speculation. Allied contends that Sharp must overcome its evidence that it does not seek out cell phone numbers. But “[s]hould a question arise as to whether express consent was provided,” wrote the FCC, “the burden will be on the creditor to show it obtained the necessary prior express consent.” Id. at 565. Thus, Allied must prove that the “wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” Id. at 654–65. Indeed, creditors “are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications.” Id. at 565. But no records have been produced here; no signed documents, no sales slips, and no purchase agreements indicating that Sharp gave consent to DirecTV to call him on his cell phone.