In Gray v. Morgan Drexen, Inc., 2014 WL 2573227 (M.D.Fla. 2014), Judge Steele denied Summary Judgment to a TCPA defend based on a triable issue of fact as to whether the Plaintiff had orally revoked consent to be auto-dialed on her cellular telephone. The facts were as follows:
This case concerns alleged violations of the Telephone Consumer Protection Act (TCPA), which prohibits making autodialed or prerecorded calls to cellular telephones without the recipient’s consent. 47 U.S.C. § 227. On February 8, 2013, Plaintiff Jody Gray (Gray or Plaintiff) filed a one-count Complaint (Doc. # 1) alleging that Defendant Morgan Drexen, Inc. (Defendant or Morgan Drexen) violated the TCPA by making autodialed and prerecorded calls to Gray’s cellular telephone without her consent. ( Id.) ¶ Morgan Drexen is a legal support company based in Costa Mesa, California. (Doc. # 22, p. 2.) It serves as a call center for certain law firms, receiving calls made in response to advertisements for legal services. ( Id.) It is undisputed that, on August 28, 2010, Gray initiated contact with Morgan Drexen by responding to an advertisement for debt consolidation services placed by one of Morgan Drexen’s law firm clients. (Doc. # 16–1, ¶ 2; Doc. # 22, p. 3.) It is also undisputed that, following Gray’s initial inquiry, Morgan Drexen used an automatic telephone dialing system to call Gray’s cellular phone and leave a prerecorded message 259 times. (Doc. # 15, p. 2; Doc. # 16–10, p. 64.) The calls in question began shortly after Gray’s initial inquiry and ended on March 22, 2012. (Doc. # 16–8; Doc. # 16–10, p. 63.)
Judge Steele found that the Plaintiff had given consent to be called on her cellular telephone, but that there was a triable issue of fact as to whether such consent had been orally revoked.
Although the parties agree on the number of autodialed and prerecorded calls and the dates on which the calls were made, they disagree as to whether Morgan Drexen had Gray’s consent to make them. Gray argues that she never gave Morgan Drexen her consent and, in any event, she revoked any consent she may have given when she spoke with a Morgan Drexen representative on September 21, 2010. (Doc. # 15.) Accordingly, Gray seeks a ruling that Morgan Drexen is liable under the TCPA for all 259 calls or, in the alternative, the 252 calls made after September 21, 2010. ( Id.) ¶ Morgan Drexen responds that Gray gave her consent during her initial inquiry and did not request that Morgan Drexen stop calling her until March 23, 2012. (Doc. # 22.) Accordingly, Morgan Drexen contends that all 259 calls were permissible. ( Id.) ¶ Gray does not contest that she gave Morgan Drexen her cellular phone number when she contacted them to request debt relief information. (Doc. # 15, p. 5; Doc. # 22–1, ¶¶ 7–9.) Additionally, there is no evidence of “instructions to the contrary” within the meaning of the 1992 FCC Order. Nevertheless, Gray argues that there is no evidence in the record from which a reasonable jury could conclude that Gray provided “prior express consent to be called by Defendant using an automatic telephone dialing system, artificial voice and/or prerecorded voice.” (Doc. # 15, p. 11.) While this may be factually correct, the 1992 FCC Order is clear that merely providing a number “as one at which the called party wishes to be reached” constitutes the required consent. 7 F.C.C.R. 8752, ¶ 9; see also Murphy, 2013 WL 6865772, at *8. Thus, given the evidence establishing that Gray provided her cellular phone number to Morgan Drexen, Gray has not shown that no material issues of fact exist regarding whether she provided Morgan Drexen express consent to be contacted. ¶ . . . Although a reasonable jury could conclude that Gray consented to Morgan Drexen’s calls by providing her cellular phone number during her initial August 28, 2010 inquiry, this does not end the analysis because Gray contends that she revoked any such consent as early as September 21, 2010. (Doc. # 15, p. 3.) ¶ While the TCPA is silent on whether a consumer may revoke previously-granted consent, the Eleventh Circuit recently concluded that consumers may revoke TCPA consent orally or in writing. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255–56 (11th Cir.2014). In doing so, the Eleventh Circuit explained that a disagreement regarding if and when consent was orally revoked is “exactly the kind of factual dispute that cannot be properly resolved on summary judgment.” Id. at 1256. That is precisely the case here. Gray contends that she revoked consent orally on at least three occasions prior to the last of Morgan Drexen’s calls. (Doc. # 16–1, ¶¶ 4, 8.) Morgan Drexen responds that, based on a review of its records, Gray made no such revocations. (Doc. # 22–1, ¶ 13.) Thus, summary judgment is inappropriate because material issues of fact exist regarding if and when Gray revoked any consent she may have given.