In Cavero v. Franklin Collection Service, Inc. , 2012 WL 279448 (S.D.Fla. 2012), Judge Altonaga granted summary judgment to a debt collector on a TCPA claim arising out of calls to a cellular telephone by means of an autodialer. 


To demonstrate a violation of the TCPA, Cavero must show Franklin called his cell phone, without his “prior express consent,” using an “automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 2279(b)(1)(A). Cavero alleges Franklin called his cell phone 19 times “with no prior permission given by Plaintiff” and left recorded messages on the cell phone without express permission, in violation of the TCPA.    Franklin contends the undisputed facts show it met all the statutory requirements of the TCPA in calling Cavero. Franklin does not dispute it called Cavero’s cell phone using an automated system—rather, at issue is whether Cavero provided his express prior consent. Franklin asserts it is entitled to summary judgment on Count I because Cavero expressly consented to being contacted at the CBR cell number regarding the debt at issue. Franklin notes the TCPA gives the Federal Communications Commission (“FCC”) rule-making authority to prescribe regulations and implement the TCPA’s provisions on automated phone calls. (See id. 8 (citing 47 U.S.C. § 2279(b)(2))). On January 4, 2008, the FCC adopted Declaratory Ruling 07–232, stating: “[A]utodialed 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.” (Id. (quoting Mot. Ex. A, In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559 (F.C.C.2008) (“Decl. Ruling 07–232”) [ECF No. 36–1] )). Therefore, if Cavero provided a creditor such as AT & T with his cell phone number, he provided express consent to be called by Franklin in connection with a debt owed to AT & T.    The Court agrees with Franklin that the undisputed facts militate toward summary judgment in Franklin’s favor. The Court finds no genuine issue of fact as to whether AT & T is Cavero’s creditor. Although Cavero disputes that he owes AT & T a debt as reflected in his bill of March 8, 2010, he bases his dispute on the mere contention that Franklin “never verified” the debt when asked. (SMFO ¶ 7). Cavero does make a general statement that “Uncertified Records do not prove anything” (id. ¶ 5), but offers no reason to question the validity of the exhibits Franklin attaches to the SM F. These exhibits include the March 8, 2010 bill (see [ECF No. 37–2] ), and the Court can see no reason it would not be admissible as a business record—it is unclear what Cavero means by an “uncertified record.”    Cavero disputes that he provided AT & T with his cell phone number because the affidavits Franklin attaches in support do not meet procedural requirements. (See Resp. 4). According to Cavero, the affidavits are not made with personal knowledge and rely on business records not sworn, certified, or attached to the affidavits. (See id. 4–7). Both affiants, however, clearly state they speak to matters within their personal knowledge and from business records, which are in fact attached. (See [ECF Nos. 37–1–3] ). Moreover, in the SMFO Cavero explicitly states that he does not dispute that he provided AT & T with his cell phone number, xxx-xxx7615, as the number at which he could be reached with respect to his AT & T account. (See SM F ¶ 6; SMFO ¶ 6). The Court finds no genuine dispute over whether Cavero provided AT & T with his cell phone number—the record establishes he did.    Since, as stated, there is no issue of fact as to whether AT & T was Cavero’s creditor, and whether Cavero gave AT & T his cell phone number, Cavero provided the consent necessary under the TCPA to be called by Franklin with respect to his debt to AT & T. Cavero cannot prevail on Count I as a matter of law, and the Court therefore grants summary judgment in favor of Franklin on this claim.