In Alvarado v. Credit Protection Ass’n, L.P, 2015 WL 1815863 (M.D. Fla. 2015), Judge Covington held that, although a debtor consented to have his cell phone called when he provided the number in connection with the transaction creating the debt, a triable issue of fact existed as to whether a “pre-suit demand letter” constituted revocation of consent.
Here, when Plaintiff set up his Bright House account, he provided Bright House with his cellular telephone number. (Doc. # 34–2 at 2; Doc. # 42–2 at 13; Doc. # 42–4 at 40). Plaintiff signed a work order, which assigned his cellular telephone number as the number associated with his account. (Doc. # 42–4 at 53, 69). Bright House then sent Plaintiff’s unpaid account to Defendant for collections and provided Defendant with Plaintiff’s cellular telephone number as the contact number on the account. (Doc. # 42–3 at 1). The record is devoid of any evidence that Plaintiff provided Bright House with “instructions to the contrary.” (See Doc. # 34–2 at 2). In fact, not only did Plaintiff admit that he has never had any contact with Defendant whatsoever (Doc. # 34–1 at 2; Doc. # 42–2 at 18–21), his testimony fails to demonstrate that he affirmatively provided his cellular telephone number for installation purposes only: Q: Now, when you gave them your cell phone, it was—you said it was for the installation only? A: Uh-huh. Q: Now who did you tell that to? A: I didn’t say it only. I just said I gave it to them. They asked me, what number could you provide for the install. * * * Q: Okay. But when you gave them your cell phone number, you didn’t say specifically, this is only for a limited purpose, you just gave them your cell phone number when they asked for it? A: Well, they asked me—they didn’t ask me what it was for. I mean they asked for my cell phone number to do an install. Q: And you gave it to them? A: I gave it to them, yes. (Doc. # 42–2 at 14). Without an affirmative statement by Plaintiff that he advised Bright House that it could only use his cellular telephone number for installation purposes, Plaintiff is not entitled to claim he gave “instructions to the contrary.” See Johnson, 2012 WL 5875605, at *3–4 (finding the record devoid of any evidence that Plaintiff provided “instructions to the contrary.”); Cavero v. Franklin Collection Serv., Inc., No. 11–22630–CIV, 2012 WL 279448, at *3–4 (S.D.Fla. Jan.31, 2012) (finding no issue of fact as to consent when the plaintiff gave his cellular telephone number to his telephone and internet provider). Therefore, the Court finds that Plaintiff provided consent to Bright House—and Dial Connection—to call his cellular telephone number. Regardless, Plaintiff contends that in the event consent was given, it was revoked upon Defendant’s receipt of the pre-suit letter by Plaintiff’s attorney. (Doc. # 44 at 4–5) (citing Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir.2014)). Plaintiff argues that pursuant to the FDCPA and FCCPA, when Defendant received the pre-suit letter, it was “legally prohibited from communicating with Plaintiff.” (Id. at 5). Thus, “by operation of law any consent Defendant had to call Plaintiff was revoked.” (Id.). Furthermore, Plaintiff argues that the Eleventh Circuit has determined that issues of consent under the TCPA are governed by common law. (Id.) (citing Osario, 746 F.3d at 1252–53). In Osario, the Court recognized that “consent is terminated when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct.” (Id.) (citing Restatement (Second) of Torts § 892A (1979)). Plaintiff submits that the pre-suit letter, which threatened to sue Defendant, “unequivocally” manifested his unwillingness to consent to Defendant’s conduct. (Id.). Accordingly, upon receipt of the pre-suit letter, Plaintiff argues that Defendant knew or had reason to know that Plaintiff was no longer willing to consent to Defendant’s telephone calls. (Id.). However, Defendant argues that the pre-suit letter fails to revoke or limit consent to call Plaintiff’s cell phone as it does not explicitly revoke consent to call Plaintiff’s cell phone, ask Defendant to stop calling Plaintiff’s cellular telephone, and is devoid of almost all personal identifying information. (Doc. # 34 at 11). Furthermore, for the reasons set forth above, Defendant argues that the pre-suit letter did not provide Defendant with actual knowledge that Plaintiff was represented by an attorney with respect to the account. (Id.; Doc. # 42 at 20). A review of the parties’ arguments and the record before the Court demonstrates that there remains a question of fact as to whether Plaintiff effectively revoked the prior consent given to Defendant. Plaintiff contends that he revoked any consent when his attorney sent Defendant the pre-suit letter. (See Doc.37, 44). Defendant, however, argues that the pre-suit letter was insufficient to revoke Plaintiff’s prior consent. (See Doc.34, 42). This is exactly the kind of factual dispute that cannot properly be resolved on summary judgment. Thus, the parties’ Motions are denied as to Count V.