Saturday, February 28, 2015

FYI: SD Fla Holds Debtor Provided "Prior Express Consent" Under TCPA, Even as to Another Account With Same Creditor

The U.S. District Court for the Southern District of Florida recently held that a debt collector’s automated calls to a debtor’s cell phone number did not violate the federal Telephone Consumer Protection Act, 47 U.S.C. §§ 227 (“TCPA”), because the debtor provided the cell phone number to the original creditor when the debtor opened a prior and different account.


In so ruling, the Court held that the “prior express consent” exception to the TCPA applied because the debtor provided his cellphone number while registering his first account, even though the number was not provided in registering the second and different account, which was the defaulted account that the debt collector was trying to collect.


A copy of the opinion is attached.


The debtor opened an account with a cable provider in September 2012, and provided his cell phone number with the account registration form.  When the debtor moved in February 2013, he closed the first account, and opened a second account with the same provider, but did not provide his cell phone number when opening the second account.


The second account became delinquent after the debtor failed to timely pay his bill.  The defendant debt collector left automated messages and placed at least 46 calls to the cell phone number provided by the debtor when registering for the first account in an effort to collect the debt relating to the second account.


As you may recall, the TCPA prohibits any person from making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice... to any telephone number assigned to a … cellular telephone service…” 47 U.S.C. § 227(b)(1)(A)(iii); 2008 FCC Declaratory Order at 560, 564.


The District Court analyzed whether the debtor provided prior express consent to debt-collection calls regarding the second account by furnishing his cell phone number to the same cable provider when opening the prior and different account, which never became delinquent.


The Court noted this was a case of first impression, as the rules interpreting the TCPA are seemingly written under the assumption that an individual only has one account with a given creditor that can become delinquent and give rise to debt-collection calls.  See e.g., Mais v. Gulf Coast Collection Bureau, Inc., 768 F. 3d 1110 (11th Cir. 2014); 2008 FCC Declaratory Order.


The debtor focused on the phrase in the 2008 FCC Declaratory Order that “during the transaction that resulted in the debt owed,” arguing that the debt collector’s calls violated the TCPA because the debt collector used the number that the debtor supplied when opening the first account to call him regarding the debt on the second account – a different “transaction.”


The Court declined to adopt the debtor’s argument, reasoning that “[i]t is clear that the 2008 FCC Declaratory Order fails to contemplate the facts of this case, where a plaintiff gave his number when opening one account with a creditor, but then received debt-collection calls regarding a second account with the same creditor,” but “its rationale offers sufficient guidance.”


The Court noted that, in its 2008 Declaratory Order, the FCC stated that the prior express consent applies “when the called party has provided the telephone number… for use in normal business communications.”  2008 FCC Declaratory Order at 564.  The Eleventh Circuit held that the FCC’s focus is on whether a consumer has consented to phone calls to a particular number from a particular creditor.  See Mais at 1124-25 (“reasoning that one creditor may not forward a phone number to another creditor so that the second may make debt-collection calls”).


The Court found that “normal business communications” logically included communications from the cable company regarding he first account as well as the second account, without instructions to the contrary. 


Thus, the Court held, because the debtor knowingly provided his cellphone number and did not provide instructions that limited communications to the first account, he gave the original creditor (and thereby, debt collector) permission to call him at that number for normal business communications, including the debt owed on the delinquent second account.


Accordingly, the Court granted summary judgment in favor of the defendant debt collector.



Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874


Admitted to practice law in Illinois






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