Nevada Supreme Court Finds TCPA Consent to be Called at Cell Phone Number from Original Application — Even Through Telephone Number Was a Land-Line Number at the Time

In Edwards v. National Credit Adjusters, LLC, 2012 WL 5851288 (Nev. 2012), the Nevada Supreme Court found that a debtor’s port of his land-line to cell phone did not create liability under the TCPA for autodialed calls to the cell phone because the debtor’s providing the telephone number in his application for credit – even if the number was a land-line at the time – constituted consent to be called ‘at that number’.

It is undisputed by the parties that appellant provided the telephone number at issue, which at that time was his landline, on his credit card application and consented to be contacted at that number. At a later date, appellant ported the number at issue from a landline to a wireless number. Appellant does not dispute that he never provided notice to his credit card company that he had ported the telephone number to a wireless number; however, appellant argues that because the telephone number was a landline when he gave consent to be contacted, and he never gave consent to be contacted at a wireless number, that NCA’s calls violate the TCPA. Under 47 U.S.C. § 227 (2010), a creditor or debt collector has the burden of showing that it had the consumer’s prior express consent to place autodialed or pre-recorded calls to the consumer’s wireless telephone. In re ACA International 23 F.C.C.R. 559, 565 (2008). Express consent is “[c]onsent that is clearly and unmistakably stated.”   Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir.2009) (internal quotations omitted). ¶  Based on the record and arguments before us, we conclude that no genuine issues of material fact remain as to whether appellant gave express consent to be called on the telephone number at issue. Wood, 121 Nev. at 731, 121 P.3d at 1030–31. Appellant admits that he gave consent to be contacted at the telephone number at issue, and “[a]lthough the TCPA generally prohibits autodialed calls to wireless phones, it also provides an exception for … calls … made with the prior express consent of the called party.” ACA International, 23 F.C.C.R. at 564. Accordingly, we conclude that the district court properly granted summary judgment in favor of respondents, and we affirm the district court’s judgment.