In Osorio v. State Farm Bank, F.S.B.-— F.Supp.2d —-, 2012 WL 1671780 (S.D.Fla. 2012), Judge Middlebrooks found that the debtor’s consent to be called on her cell phone transferred to her co-habitating significant other, so as to eliminate liability under the TCPA.
Applying the regulations promulgated by the FCC, Betancourt unequivocally provided her express consent that State Farm could call 8626 on the following dates: (1) May 10, 2007, (2) June 2007; (3) May 29, 2008; and (4) September 29, 2010. Never-theless, despite Betancourt’s express representations that State Farm could call “her” number, Osorio asserts State Farm’s calls were unauthorized because he is the “called party” and did not provide his express consent to State Farm. Assuming Osorio is the “called party”, the issue remains whether Betancourt can provide prior express consent on Osorio’s behalf. In Meadows v. Franklin Collection Services, Inc., plaintiff (“Meadows”) appealed a district court’s entry of summary judgment in favor of defendant (“Franklin”) on her TCPA claim, in which she al-leged Franklin violated 47 U.S.C. § 227(b)(1)(B) when Franklin called her residential telephone line using an artificial or prerecorded voice to collect a debt owed by Meadows’s daughter who previously lived with Meadows and listed the number on her credit card application. Meadows v. Franklin Collection Services, Inc., 414 F. App’x 230, 232 (11th Cir.2011). Even though the opinion in Meadows related to a separate provision of the TCPA, the Elev-enth Circuit provided: “the FCC has determined that all debt-collection circumstances are excluded from the TCPA’s coverage, and thus the exemptions apply when a debt collector contacts a non-debtor in an effort to collect a debt. Otherwise, a debt collector that used a prerecorded message would violate the TCPA if it called the debtor’s number and another member of the debtor’s family answered.” Meadows v. Franklin Collection Services, Inc., 414 F. App’x 230, 235 (11th Cir.2011). The justification supporting the Eleventh Circuit’s decision in Meadows is equally applicable in the instant matter. If Osorio could sue State Farm for over $75,000 because the woman with whom he cohabitates with and had a child with pro-vided “his” number to State Farm on multiple occa-sions, debt collectors would be held liable whenever a debtor lists a family member’s number as his own. In further support of its position that Betancourt could provide prior express consent on behalf of Oso-rio, State Farm relies upon Gutierrez v. Barclays Group, No. 10cv1012 DMS, 2011 WL 579238, (S.D.Cal. Feb. 9, 2011). In Gutierrez, a husband listed his wife’s telephone number on a credit card application, and, after he stopped making credit card payments, the creditor called his wife’s cellular tele-phone using prerecorded messages. Id. at *1. The wife sued the creditor under the TCPA and argued that her husband lacked the authority to provide prior express consent on her behalf because she did not consent to her husband listing her number on his credit card application. Id. at *2–3. The district court determined that a third-party could provide express consent under the TCPA on behalf of a plaintiff if the third-party “possessed common authority over or other sufficient relationship to the” phone. Id. at *3. I find the reasoning set forth in Guiterrez persuasive and in accord with analysis set forth in Meadows. A debt collector should be immune from liability under the TCPA when an applicant represents that a family member’s or close acquaintance’s phone number be-longs to him. *5 Returning to the instant matter, I find Betancourt provided express consent under the TCPA on Osorio’s behalf. Even though Betancourt and Osorio are not legally married, they live together and con-tinue to raise their son together. It is undisputed that Betancourt and Osorio subscribe together to MetroPCS because their numbers are both included in their MetroPCS family plan. This fact, coupled with the fact that Betancourt represented to State Farm on three occasions that 8626 was her number, demonstrates that Betancourt at a minimum had common authority over the phone. In fact, Betancourt testified that she did not think it was necessary to ask Osorio for permission to list “his” number “because [she] put it down as an emergency contact.” (Betancourt Depo. 55:8–22). After considering the record, I find no genuine dispute exists as to whether State Farm had prior express consent to call “Osorio’s” number.
The District Court also found revocation of consent ineffective because it was not made in writing, explaining:
While the Eleventh Circuit has never addressed this issue, a few district courts outside this circuit considered whether a revocation under the TCPA must be in writing. After reviewing the decisions provided by both Parties, I find the collection of cases filed by the district courts in the Western Dis-trict of New York exceedingly persuasive See, e.g., Starkey v. Firstsource Advantage, L.L.C., No. 07–CV–662A, 2010 WL 2541756 (W.D.N.Y.Mar.11, 2010); see also Moltz v. Firstsource Advantage, Inc., Case No. 08–CV–239S, 2011 WL 3360010, (W.D.N.Y. Aug. 3, 2011); see also Moore v. First-source Advantage, LLC, No. 07–CV–770, 2011 WL 4345703, at *11 (W.D.N.Y. Sept. 15, 2011). In Starkey v. Firstsource Advantage, L.L.C., plaintiff filed both TCPA and FDCPA claims against a debt collector. Starkey v. Firstsource Advantage, L.L.C., No. 07–CV–662A, 2010 WL 2541756 at *1 (W.D.N.Y.Mar.11, 2010). Similar to the facts in the instant matter, at the time plaintiff activated her cable services she provided prior express consent to her provider that it could call her cell phone; however, after she defaulted on her payments, plaintiff at-tempted to revoke that consent orally. The court held that because plaintiff authorized her provider to call her cell phone, her provider’s collection efforts were not governed by the TCPA because “as clearly stated in the December 28, 2007 FCC Declaratory Ruling, calls regarding debt collection or to recover payments are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’ “ Id. at *5. Since the pro-vider’s actions constituted debt collection practices, the court ruled that the legality of the provider’s efforts was governed by the FDCPA, which does not recognize verbal revocations. Id. at *5. After consid-ering Starkey, and subsequent cases that rely upon Starkey, I find Osorio’s and Betancourt’s verbal revo-cations insufficient as a matter of law to revoke Betancourt’s prior express consent.