District Court (Ohio) Discusses Intermediary Consent in TCPA Case; Rejects Reyes

In Rodriguez v. Premier Bankcard, LLC, Case No. 3:16CV2541, 2018 WL 4184742 (N.D. Ohio. August 31, 2018),  Judge Carr framed 3 questions on summary judgment.

First, Premier claims that because Hodge is the subscriber to the 70 number–that is, the consumer assigned to the number, and the individual billed for the call–he “was entitled to grant prior express consent for Premier” to call the number, “notwithstanding the fact that his wife might [have been] the customary user.” (Doc. 28, ID 267). Under this theory, whether Rodriguez herself agreed to the calls is irrelevant. Defendants were entitled to act on Hodge’s permission, as it is “ ‘reasonable for callers to rely’ on ‘consent to receive robocalls’ from either type of called party.” Leyse v. Bank of Am., N.A., 804 F.3d 316, 327 n.15 (3d Cir. 2015) (quoting In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8000–01 (2015) aff’d in part and vacated in part in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) ).  Second, defendants contend that insofar as they were required to obtain Rodriguez’s permission, they obtained it, because “Hodge had authority to provide prior express consent” on his wife’s behalf “under the doctrine of intermediary consent,” (Doc. 28, ID 267), as set out in the Sixth Circuit’s Baisden decision.. . . Finally, although Premier continued calling plaintiffs for roughly a month after plaintiffs first asked it to stop,  defendants argue these calls do not violate the Act.. Premier maintains that Hodge bargained away his right to revoke consent in the credit card agreements, and “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent,” Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), even where, as here, the credit card agreements do not address revocation. Defendants also appear to believe that insofar as Hodge conveyed “intermediary consent” to be contacted on Rodriguez’s behalf, she too is bound by a revocation waiver implicit in the credit card agreements.

The District Court held that the Defendant could rely on the Plaintiff’s husband providing her telephone number.

“Importantly…while debtors ‘typically give their cellphone number…at the beginning of the debtor-creditor relations, it doesn’t have to be that way.’ ” Id. at 344 (quoting Hill, 799 F.3d at 552). A debtor may also give his “prior express consent” at a later point in the relationship if, in a context related to the underlying debt, “he gives a company his number before it calls him.” Id. (citation and brackets omitted). In this case, Hodge did that.  In addition to providing both numbers in the 2016 application, Hodge gave Premier Rodriguez’s number in October 2014, as his contact number for the 2014 account, and later provided his own cell phone number when disputing charges on an “Affidavit of Unauthorized Use.” (Doc. 43-1, ID 634). Plaintiff also verbally confirmed to a Premier customer representative that defendants could contact him at both numbers when he called to report a lost card in February 2016.  What is more, defendants informed Hodge they would use the 97 and 70 numbers to contact him in the consent to call provisions of the credit agreements, stating:“You agree and expressly consent that we and our agents, affiliates, [etc.] may call or contact you at any cellular, mobile, home, work or other telephone number…of any kind whatsoever that…you provide or use to contact us.” (Doc. 43-1, ID 628, 631). Hodge further agreed that Premier could “utilize[ ] an automatic telephone dialing system, artificial voice or pre-recorded message” to facilitate the calls. (Id.).  And although plaintiffs question whether Hodge in fact received both credit card agreements,4 whether he did or not is ultimately beside the point, because “TCPA-engendered consent–in the form of [Hodge] providing his telephone number–is beyond the scope of [any] contract.” Patterson v. Ally Fin., Inc., 2018 WL 647438, *5 (M.D. Fla. 2018).  “[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.” 23 FCC Rcd. at 564 (quoting In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 872, 876-79 (1992) ). This is so even where there is no underlying agreement between the parties. See Hill, supra, 799 F.3d at 552 (defining “prior express consent” pursuant to the FCC’s rulings, not the “express written consent” forms the plaintiff signed in connection with his mortgage); Nigro v. Mercantile Adjustment Bureau, LLC, 769 F.3d 804, 806–07 (2d Cir. 2014) (per curiam) (applying the FCC’s rulings to consumer plaintiff’s conduct in a case not involving an underlying contract).  “Indeed…consent under the TCPA is not a matter of contract, nor subject to contract principles.” Ginwright v. Exeter Fin. Corp., 280 F.Supp.3d 674, 683 (D. Md. 2017) (citation and brackets omitted). A consumer who provides his cell phone number “to a creditor in connection with an existing debt” gives his “prior express consent” under the Act because the FCC says he does, not because a credit agreement tells him so. Baisden, supra, 813 F.3d at 342, 345 (citations omitted).  Here, defendants have shown that Hodge gave Premier the 97 and 70 numbers “before it called him.” Hill, supra, 799 F.3d at 552. That proves consent regardless of whether Hodge received the credit card agreements. . .What happens then, when one “called party” gives prior express consent to contact a certain number, and another doesn’t?  To my knowledge, only two authorities have addressed this issue: the FCC and the Third Circuit. Both agreed that it is “ ‘reasonable for callers to rely’ on ‘consent to receive robocalls’ from either type of called party,”–meaning either the subscriber, or the non-subscriber customary user can give prior express consent. Leyse, supra, 804 F.3d at 327 n.15 (citing 30 FCC Rcd. at 8001–02). By this logic, because Hodge and Rodriguez are both called parties, “consent from either would shield [Premier] from liability” in a suit brought by the other. Id. That means defendants’ first theory is correct; Hodge’s consent precludes Rodriguez’s claim, regardless of whether she ever personally gave prior express consent. See id. (noting in dicta that “consent from either” the subscriber or non-subscriber customary user “would shield [the debt-collecting caller] Bank of America from liability”).

The District Court rejected Reyes and it’s contractual prohibition against revocation.

Allowing the consumer to revoke his consent verbally is “consistent with the government interest articulated in the legislative history of the TCPA,” namely, “enabling the recipient of incessant and unwanted calls to ‘tell the autodialers to simply stop calling.’ ” Schweitzer, supra, 866 F.3d at 1276 (citation and brackets omitted).  On the other hand, if creditors could contract around the TCPA, “one imagines that every company in the nation–from Dell Financial and State Farm Bank, to every student loan provider, to every catalogue sales company–would amend their contracts to require customers to waive every right their customers currently have.” Ammons, supra, ––– F. Supp.3d at ––––, 2018 WL 3134619 at *13 (quoting Skinner, supra, 2015 WL 4135269 at * 3). In short, “adopt[ing] the prohibition on revocation in Reyes…would result in the effective circumvention of the TCPA in the debtor-creditor context.” Ginwright, supra, 280 F.Supp.3d at 683.  I decline defendants’ invitation to go that route.  Rather, for the foregoing reasons, I agree that Hodge’s “contractual relationship” with Premier did not “exempt” defendants “from the TCPA’s requirements,” even if his consent “is part of the consideration” for the parties’ credit card agreements. Gager, supra, 727 F.3d at 273–74.