In Schweitzer v. Northland Group Inc., 2014 WL 5782991 (S.D.Fla. 2014), Judge Cohn granted summary judgment to a debt collector on a debtor’s TCPA claim.
Citibank asserts that Schweitzer’s TCPA claim against it fails because Schweitzer consented to be called in connection with the debt upon which Defendants tried to collect. DE 40–1 at 9–12. Schweitzer bases his TCPA claim upon violations of 47 U.S.C. § 227(b)(1)(B). Am. Compl. ¶ 33. That provision of the TCPA prohibits certain telephone calls made to consumers “without the prior express consent of the called party.” 47 U.S.C. § 227(b)(1) (B). Providing a telephone number to a creditor “reasonably evidences prior express consent … to be contacted at that number regarding the debt.” In re Rules Implementing the TCPA, 23 F.C.C.R. 559, 564 (F.C.C.2008) (“2008 FCC Ruling”). ¶ Schweitzer provided his telephone number to Citibank when he applied for a credit card. DE 40–2 ¶¶ 2–4. Schweitzer thus consented to receive calls from Citibank about the resulting credit-card debt. See 2008 FCC Ruling, 23 F.C.C.R. at 564. Because Schweitzer consented to receive these calls from Citibank, his TCPA claim based upon the alleged debt-collection calls fails as to Citibank as a matter of law. See 47 U.S.C. § 227(b)(1)(B). ¶ Schweitzer’s TCPA claim also fails with respect to all Defendants because their debt-collection calls do not fall within the scope of the TCPA’s prohibitions. Section 227(b)(1)(B) prohibits certain calls to residential telephone lines. However, some types of calls are excluded from the coverage of Section 227(b)(1)(B) by FCC rules or orders. See id. § 227(b)(2)(B). Among those excluded calls are debt-collection calls. 47 C.F.R. § 64.1200(a)(3)(iii); Meadows v. Franklin Collection Serv., Inc., 414 F. App’x 230, 235 (11th Cir.2011) (per curiam). Because the telephone calls at issue in this case were debt-collection calls placed to Schweitzer’s residential telephone number,FN1 they are excluded from the scope of the TCPA by the FCC, and cannot support a TCPA claim. [FN1. In the Amended Complaint, Schweitzer states that he received telephone calls on his cellular telephone. Am. Compl. ¶ 33. However, Schweitzer premises his claim upon a portion of the TCPA pertaining only to residential telephone lines. Id. Further, according to the uncontroverted facts asserted by Defendants, the calls at issue in this case were directed solely to Schweitzer’s home telephone number, and not to his cellular telephone. DE 40–3 ¶ 6; DE 41–2 ¶ 12; DE 41–3 ¶ 5; DE 42–3 ¶ 3; see also DE 41–4 at 1–2, 6; DE 50 at 1–2 n. 1. The Court therefore addresses Schweitzer’s TCPA claim as involving only calls made to a residential telephone line.]