In Johnson v. Credit Protection Ass’n, L.P., 2012 WL 5875605 (S.D.Fla. 2012), Judge Marra found for a debt collector under the TCPA, finding that the debtor had given consent to be called and had not limited that consent in the debtor’s original transaction with the creditor. The facts were as follows:
Plaintiff Sherone C. Johnson (“Plaintiff”) provided his cellular phone number to Comcast on May 9, 2009. (May 9, 2009 work order, CPA000073, Ex. 1, DE 34–1.) Plaintiff testified that he provided his cellular phone number to Comcast in order that Comcast could perform installation for cable services. (Pl. Dep. at 21–23, DE 34–2.) Plaintiff incurred an outstanding balance to Comcast in the amount of $239.53 for the cable services Comcast provided. (Balance document, CPA000001, Ex. 1, DE 34–1; Pl. Dep. at 26.) Plaintiff did not pay the outstanding balance and Comcast provided Plaintiff’s account information and cellular telephone number to Defendant for collection on or around February 19, 2010. (Id.) On May 13, 2010, Defendant called Plaintiff’s cellular telephone number and left a voice message. (Compl. ¶ 10, DE 1; History File Inquiry, CPA000002, Ex. 1, DE 34–1.) On May 20, 2010, Defendant again called Plaintiff’s cellular telephone number and left a voice message. ( Id.) Plaintiff did not return the telephone calls. (Pl.Dep.14.) Plaintiff thought a lawsuit might have been brought against him for a debt and instead called his attorney. ( Id. at 32–33.) On October 13, 2011, Defendant produced a copy of the Comcast work order/customer agreement to Plaintiff. (May 9, 2009 work order .) The work order includes Plaintiff’s cellular telephone number in two places. ( Id.; Pl. Dep. 23–24.) Plaintiff signed the work order. (May 9, 2009 work order; Pl. Dep. 20.)
Judge Marra found that the foregoing established ‘consent’ to be called under the TCPA and that the debtor had not limited such consent to be called solely with respect to the transaction at issue.
With respect to the TCPA, the Federal Communications Commission (“FCC”) has issued a declaratory ruling clarifying that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the “prior express consent” of the called party. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Declaratory Ruling No. 07–232, 23 F.C.C.R. 559 (Jan 8, 2008).FN2 This order states, in part, as follows: “Because we find that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the “prior express consent” of the called party, we clarify that such calls are permissible. We conclude 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. … Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” Id. at ¶ ¶ 9–10. With respect to the issue of consent, the FCC has stated the following: “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary. Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 F.C .C.R. 8752, ¶ 9 (Oct. 16, 1992). Here, at the time Plaintiff set up his service with Comcast, he provided Comcast with his cellular telephone number. (May 9, 2009 work order; Pl. Dep. at 21–23.) Comcast then gave this telephone number to Defendant when it forwarded to Defendant Plaintiff’s account for collection. (Balance document, CPA000001, Ex. 1; Pl. Dep. at 26.) These facts are similar to the facts in Cunningham v. Credit Management, L.P., No. 3:09–cv–1497–G (BF), 2010 WL 3791104 (W.D.Tex. Aug. 30, 2010). In that case, the plaintiff had an internet services account with Time Warner. Id. at * 5. It was undisputed that Time Warner had the plaintiff’s cellular telephone number in connection with the account. Id. The Court found no genuine issue of material fact as to consent. Id. at * 4; see also Cavero v. Franklin Collection Svc., 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); cf. Starkey v. Firstsource Advantage, LLC, No. 07–CV–662A(Sr), 2010 WL 2541756 (W.D.N.Y. Mar.11, 2010) (finding when the plaintiff activated her account with the cable provider and provided the cable provider with her cellular telephone number, she did not revoke her consent for telephone calls from the cable provider’s collection agency under the TCPA when her revocation was not put into writing.) Nonetheless, Plaintiff contends that he did not consent to the calls; specifically, he argues that that, even though he provided his telephone number to Comcast, he also gave Comcast specific instructions that the use of that number was for the purpose of installation only. (Resp. at 3.) In so arguing, Plaintiff relies on FCC Declaratory Ruling 07–232 which states, in part, that “the Commission determined that persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” FCC Declaratory Ruling No. 07–232, at ¶ 9 (emphasis added) (internal quotation marks omitted). The record, however, is devoid of any evidence that Plaintiff provided “instructions to the contrary.” Instead, a review of Plaintiff’s deposition states that while Plaintiff provided his telephone number to Comcast in order that it could call him regarding the installation of cable services, there is no record evidence that Plaintiff instructed Comcast that the phone number could only be used for that purpose. (Resp. at 3; Pl.’s Statement of Additional Material Facts ¶ 21.) Without an affirmative statement by Plaintiff that he advised Comcast it could only use his phone number for installation purposes, he is not entitled to claim he gave “instructions to the contrary.” See FCC Declaratory Ruling No. 07–232, at ¶ 9 n. 34 (noting persons who knowingly release their telephone numbers have “in essence requested the contact by providing the caller with their telephone number for use in normal business communications.” For the foregoing reasons, Defendant is granted summary judgment on the TCPA claim.