In Johnston v. USAA Federal Savings Bank, 2014 WL 5439965 (D.Colo. 2014), Judge Babcock found that a TCPA Plaintiff could revoke prior express consent, but that unspecified oral protestations were unsufficient to do so. Written notice setting forth the revocation and the cellular telephone number at issue, however, would be effective to revoke consent.
Because Plaintiff expressly agreed that Defendant could contact him via his phone numbers in his online profile, and he then provided Defendant his cell number by designating it as his “business number,” Defendant argues that its actions in calling his cell phone could not, as a matter of law, constitute a violation of 47 U.S.C. § 227(b)(1)(A)(iii). In support of this argument, Defendant refers me to Chavez v. Advantage Group, 959 F.Supp.2d 1279 (D.Colo.2013), which ruled that the defendant was entitled to summary judgment on the plaintiff’s TCPA claim when the plaintiff provided her cell phone number to a medical center to whom she owed a debt for the provision of medical services. The medical center assigned the debt for collection to the defendant who, in turn, used an automatic telephone dialing system in an attempt to contact the plaintiff on her cell phone. The Court in Chavez v. Advantage Group, supra, concluded that the plaintiff “gave prior express consent to defendant to contact her cell phone number in connection with the debt incurred as a result of the services provided to her” at the medical center. 959 F.Supp.2d at 1283. The Court relied upon a 2008 ruling issued by the Federal Communications Commission, which concluded that “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” Id. at 1281 ( quoting 2008 FCC Ruling at 564–65, ¶ 10). As such, the Court in Chavez v. Advantage Group adopted the FCC declaration that “autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt … are permissible.” Id. ( quoting 23 F.C.C.R. at 564, ¶ 9). . . . Rather, I am persuaded by the line of district court cases which have ruled that consent may, in fact, be withdrawn. See e.g. Gager v. Dell Fin. Servs., supra, 727 F.3d at 268–272; Beal v. Wyndham Vacation Resorts, Inc., 956 F.Supp.2d 962 (W.D.Wis. June 20, 2013); Adamcik v. Credit Control Services, Inc., 832 F.Supp.2d 744 (W.D.Tex.2011). “[T]he weight of authority suggests that consent may be revoked under the TCPA and that if messages continue after consent is revoked, those messages violate the TCPA.” Munro v. King Broadcasting Co., 2013 WL 6185233 (W.D.Wash.2013). My conclusion is supported by the circumstances present here in which Plaintiff is given the ability to revoke his consent – as governed by his online agreement with Defendant – which provides that he “may” revoke by deleting his cell phone number from his user profile. Although it is undisputed that Plaintiff has not done so, it provides evidence that Defendant allows the consumer’s consent to be withdrawn. In addition, Defendant avers that it placed Plaintiff’s cell phone number on a “do not call” list after receiving his letter asking that it stop calling his cell phone. Thus, under the facts of this case, Plaintiff’s written letter to Defendant asking that it stop calling his cell phone, and identifying the specific number, served to revoke his previous consent. See generally Andersen v. Harris & Harris, Ltd., 2014 WL 1600575, (E.D.Wis.2014)(“the best rule would be one requiring revocation of consent in writing … as consistent with the [Fair Debt Collection Practices Act] as that requirement would ensure that the debt collector actually received revocation”). Plaintiff further asserts that there is a factual dispute barring entry of summary judgment in favor of Defendant in that his affidavit and call logs show that after it put his number on the no call list, “Defendant placed 4 calls to his cell phone …”. [Doc # 49 pg. 5, Ex. 1 pg. ¶ 12] However, I conclude that such statement is merely self-serving and conclusory as it is unsupported and, in fact, refuted by the evidence. Specifically, the undisputed evidence is that Defendant received Plaintiff’s written request to stop calling his cell phone number via facsimile on Saturday, July 28, 2012. Plaintiff was called twice on Monday, July 30, 2012, before Defendant could process his letter and place his cell phone number on a do not call list. Plaintiff agreed, in his deposition, that Defendant’s response to his letter was reasonable. Plaintiff now asserts, in his affidavit, that “[a]fter faxing a … letter to USAA on July 30, 2012, I received 4 calls to my cell phone from USAA”. [Doc # 49 Ex. 1] This statement is not supported by any further information or evidence, and Plaintiff’s handwritten log does not differentiate between calls made to his home phone number and his cell phone number. Defendant admits that it called his cell number twice on July 31, 2012, before placing it on the do-not call list, but Plaintiff agreed that the timing in response to his letter was reasonable. [Doc # 48 Ex. A pg. 179] In addition, Defendant provides its business records which show no further calls to Plaintiff’s cell number. [Doc # 48 Ex. L] Plaintiff’s records from his cell phone service provider reveal a single call from USAA’s Banking Service Customer Service line (on 8/6/12 from 1–800–531–8722) that was unrelated to the debt at issue, and three calls from a debt collection agency that had been subsequently assigned the debt by Defendant (on 8/15/12, 9/7/12, 9/12/12 from 1–866–516–1880, identified as United Recovery Systems). [Doc # 52 Ex. W pp. 169, 189, 206] Furthermore, Defendant avers that the toll-free number 1–866–516–1880 does not belong to it. [Doc # 52 Ex. V] Thus, I conclude that while Plaintiff gave his consent for Defendant to contact him on his cell phone, he then effectively revoked his consent via his letter asking Defendant to stop calling and identifying his cell phone number. Plaintiff’s unsupported and conclusory claim that Defendant called his cell number after receiving and processing his letter is refuted by the evidence and, as such, is not significant probative and insufficient to raise a genuine issue of material fact in order to avoid entry of summary judgment in favor of Defendant. Anderson v. Liberty Lobby, supra, 477 U.S. at 249 (ruling that “the plaintiff could not rest on his allegations of a conspiracy to get to a jury without any significant probative evidence tending to support the complaint”) (citation omitted). Thus, I conclude that Plaintiff’s TCPA claim under 47 U.S.C. § 227(b)(1)(A)(iii) must be dismissed on summary judgment as a matter of law.