In Soulliere v. Central Florida Inv., Inc., 2015 WL 1311046 (M.D.Fla. 2015), Judge Whittemore found that a non-subscriber/regular user of a cellphone had standing to bring a TCPA claim and that there was a triable issue of fact regarding whether there was consent or whether such consent had been revoked.
Defendants argue that Plaintiff does not have standing because he was not the subscriber of the cell phone service, and therefore not the “called party” within the meaning of the TCPA. They rely on the Eleventh Circuit’s opinion in Osorio v. State Farm Bank, F.S.B ., 746 F.3d 1242, 1251 (11th Cir.2014) which held that “called party” means the subscriber of the cell phone service. Plaintiff responds that he was the subscriber of the cell phone number at the time CFIRM made the calls at issue notwithstanding that he was not charged for the calls, also relying on Osorio. ¶ The Eleventh Circuit has held that “called party,” for purposes who can give “prior express consent” in the context of § 227(b) (1)(A)(iii), means the subscriber to the cell phone service. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251 (11th Cir.2014); Breslow v. Wells Fargo Bank, N.A., 755 F.3d 1265, 1267 (11th Cir.2014). In doing so, the court in Osorio rejected the defendant’s position that “called party” means the intended recipient. Osorio, 746 F.2d at 1252. Osorio did not address the issue of who has standing to bring a claim under this section. Generally, the subscriber is the person who is obligated to pay for the telephone or needs the line in order to receive other calls and has the authority to consent to receive calls that would otherwise be pro-hibited by the statute. Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 639, 641 (7th Cir.2012); also Osorio, 746 F.3d at 1251 (citing Soppet with approval). However, in some cases the subscriber transfers primary use of the telephone to another, as Plaintiff’s employer did here. In such a case, the primary user may be the subscriber’s agent, thereby permitting the primary user to consent to being called. See Osorio, 746 F.3d at 1252. However, Osorio does not necessarily stand for the proposition that the primary user must be the subscriber’s agent in order to consent. The court did not need to address that issue because the number at issue belonged to the subscriber, and there is no indication from the opinion that he trans-ferred the number to another person for primary use. Rather, the other individual merely provided the sub-scriber’s number as one of her contact numbers. Id. at 1247.¶ As at least one district court has recognized, Osorio and Breslow may have held that a current subscriber qualifies as a “called party,” to the exclu-sion of a prior subscriber who had authorized the call, but they did not address whether the term also covers a cell phone’s current primary user. Gesten v. Stewart Law Grp., LLC, No. 14–61650–CIV, 2014 WL 7243330, at *3 (S.D.Fla. Dec.19, 2014). Moreover, several district courts within the Eleventh Circuit, and in other circuits, have construed the statute to confer broader standing than that argued by Defendant. Defendants have not cited binding authority to contrary. Those district courts have held that the primary or regular user of the cell phone has standing. Indeed, the TCPA simply states that “a person or entity” can bring such a claim. 47 U.S.C. § 227(b)(3). This conclusion finds further support from the fact that the TCPA is designed to protect users of telephones from nuisance calls and from unwarranted invasions of their privacy. See Pub.L. 1–2–243, § 2, ¶¶ 12–14, 105 Stat. 2394 (1991) (banning automated or prerecorded telephone calls is the only effective means of protecting telephone consumers from “this nuance and invasion of privacy”; automated or prerecorded telephone calls “are a nuisance, are an invasion of privacy”). Moreover, in Osorio, the court also held that a plaintiff need not prove he was charged individually for each autodialed call to his cell phone. Id. at 1258.There are some inconsistencies in the evidence regarding who pays Plaintiff’s cell phone bill. Regardless of whether Plaintiff’s employer, Bill Maher Chevrolet is the subscriber in that it owns Plaintiff’s cell phone number and pays the bill, Plaintiff is not precluded from having standing as it is not disputed that he was the primary or regular user of his cell phone and received the calls at issue.
The District Court found a triable issue of fact as to whether the Plaintiff provided and/or revoked consent to be autodialed on his cell phone.
Plaintiff argues that Defendants cannot meet their burden of demonstrating they had his consent because they have no documentation of Plaintiff providing consent and no evidence that he provided verbal consent. CFIRM has submitted evidence from which it is fair to infer that Plaintiff provided his cell phone number to it, as the creditor, in connection with his timeshare account. CFIRM produced call logs from December 2004 which reflect that a male individual contacted CFIRM on December 2, 2004 regarding changing the name on Plaintiff’s timeshare account. Also in the record is a fax from Plaintiff to the “name change representative” (Dkt. 46–3 at 29) and a letter from Plaintiff enclosing the deed transferring ownership to him (Id. at 30). The call logs include notes referring to what appears to be the fax from Plaintiff and calls from a male individual regarding the status of the name change on the account and wanting to know whether his information is in the system (Dkt. 46–1 at 15). From this evidence, it is reasonable to infer that the male caller identified in the call logs is Plaintiff. The call logs also contain Plaintiff’s cell phone number, which Plaintiff does not dispute. However, he suggests that CFIRM somehow acquired his cell phone number from an “unverified source” (Dkt. 43 at 2). He does not provide any evidence to substantiate this suggestion. Nor does Plaintiff provide evidence of any other way CFIRM would have obtained his cell phone number except from him. Rather, to negate CFIRM’s evidence, he submits his own affidavit in which he states that he never provided Defendants with his cell phone number (Dkt.43–1, ¶ 11–15). As noted previously, Plaintiff’s deposition testimony was that he could not recall whether he did or not. Nevertheless, CFIRM has the burden of proving prior express consent. Although just barely, based on the record evidence viewed in the light most favorable to Plaintiff and drawing inferences in his favor, whether Plaintiff provided prior express consent is a disputed issue of material fact precluding summary judgment. Even if Plaintiff consented to CFIRM’s calls, CFIRM is still not entitled to summary judgment because there is an issue of material fact as to whether and when he revoked whatever consent CFIRM might have had. Plaintiff says he told CFIRM at least five times to stop calling him. CFIRM says he did no such thing. As such, the question of whether Plaintiff re-voked whatever consent CFIRM might have had should proceed to a jury. See Osario, 746 F.3d at 1256