In Levy v. Receivables Performance Management, LLC— F.Supp.2d —-, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer’s cellular telephone where the consumer had given a prior cellular number to the creditor.
With respect to the issue of prior express consent, both the FCC and various federal courts have deemed a debtor’s provision of his or her cell phone number to a creditor or a debt collection agency during the lifespan of the debt to constitute prior express consent under the TCPA. Thus, in situations where a debtor listed his or her cell phone number on an initial credit application or directly informed his or her creditor or debt collection agency that he or she could be contacted at a specific cell phone number in regards to a debt, courts have found prior express consent. Here, it is undisputed that any cell phone number that appears on plaintiff’s initial credit application is not the same cell phone number that RPM proceeded to dial for plaintiff. Moreover, it is uncontroverted that RPM received plaintiff’s cell phone number from a third-party, and not from plaintiff. Although RPM argues that plaintiff should, nevertheless, be deemed to have provided prior express consent by virtue of the fact that he, at times, initiated calls to RPM and, at least on one occasion, verified the cell phone number from which he was calling, the fact of the matter is that plaintiff took no affirmative act rising to the level of prior express consent. For this reason, and as discussed in detail supra, no rational jury as a matter of law could conclude, based on the undisputed facts of this case, that RPM had plaintiff’s prior express consent to be contacted on the specific cell phone number that RPM dialed via an automatic telephone dialing system to reach plaintiff for debt collection purposes.
RPM does not dispute that it used an ATDS, as defined by the TCPA, to call plaintiff. ( See Pl.’s 56.1 ¶ 2; Def.’s 56.1 ¶ 2.) Also uncontroverted is that the number RPM dialed was plaintiff’s cell phone number at the time. ( See Pl.’s 56.1 ¶ 3; Def.’s 56.1 ¶ 3.) In defending itself against TCPA liability, however, RPM argues that plaintiff previously expressly consented to receiving the calls. RPM’s argument is essentially that because plaintiff provided his former cell phone number to his creditor, Household, along with his initial credit application, plaintiff expressly consented to being contacted by RPM, the party charged with collecting the debt owed, at a subsequent cell phone number via an ATDS. Accordingly, RPM maintains that it should be exempt from TCPA liability, and that summary judgment should be entered in its favor on the TCPA claim. For the reasons discussed in detail below, the Court disagrees; the Court concludes that, based on the undisputed facts of this case, no rational jury could find as a matter of law that plaintiff rendered the type of prior express consent contemplated by the TCPA, and, thus, summary judgment is warranted in plaintiff’s favor on this claim. “Prior express consent” to be contacted on a cell phone via an ATDS in regards to a particular debt has been deemed granted in situations where a plaintiff provided his or her cell phone number to a creditor during the transaction that resulted in that particular debt. See, e.g., Castro v. Green Tree Servicing LLC, 10–CV–7211 (ER), 2013 U.S. Dist. LEXIS 115089, at *59–60 (S.D.N.Y. Aug. 14, 2013); Saunders v. NCO Fin. Sys., 910 F.Supp.2d 464, 467 (E.D.N.Y.2012); Adamcik v. Credit Control Servs., Inc., 832 F.Supp.2d 744, 748 (W.D.Tex.2011) (“[T]he evidence at trial conclusively showed [plaintiff] provided her cellular telephone number to [creditor] in connection with her application for a student loan. The FCC has ruled this constitutes prior express consent under § 227(b) to receive autodialer calls related to debt collection.”); see also 2008 TCPA Order, 23 FCC Rcd. at 564–65 (stating 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” and concluding 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”).FN11 For example, in a recent decision of a court within this district, Saunders v. NCO Financial Systems, the plaintiff conceded that by listing only his cell phone number with his creditor, he gave both his creditor and its collection agent “prior express consent” to be called at that number. 910 F.Supp.2d at 467. The Saunders court noted that such was a “concession that plaintiff must make, as the authorities are almost unanimous in holding that voluntarily furnishing a cellphone number to a vendor or other contractual counterparty constitutes express consent.” Id. (citing cases); see also id. at 468 (“Nothing compels a consumer to list his cell phone number with his counterparty when he opens an account, or to open an account at all, but if that is the number he chooses to provide, then he cannot complain about being called at that number.”).FN12 [FN11. The Court recognizes, as plaintiff points out, that there are district courts that have reviewed and rejected the FCC’s rulings on this issue. See, e.g., Lusskin v. Seminole Comedy, Inc., 12–62173–Civ–Scola, 2013 U.S. Dist. LEXIS 86192, at *7–9 (S.D. Fla. June 19, 2013); Mais v. Gulf Coast Collection Bureau, Inc., 11–61936–Civ–Scola, 2013 U.S. Dist. LEXIS 65603, at *16–32 (S.D.Fla. May 8, 2013). However, the overwhelming majority of district courts that have considered this issue have found that the FCC’s rulings, including the 2008 TCPA Order, are binding on them (and not subject to review except by the federal courts of appeals), and have, therefore, found prior express consent in situations where a debtor directly provided his or her cell phone number to the creditor. See, e.g., Chavez v. Advantage Grp., 12–cv–02819–REB–MEH, 2013 U.S. Dist. LEXIS 110522, at *8 (D.Col. Aug. 5, 2013) (rejecting plaintiff’s argument that would have the “practical effect of … set[ting] aside, annul[ing], or suspend[ing] the 2008 FCC Ruling” and joining “those courts that have found that the 2008 FCC Ruling is binding on the district courts and not subject to review except by federal courts of appeals” (citing cases) (internal quotation marks omitted)); Greene v. DirecTV, Inc., 10 C 117, 2010 U.S. Dist. LEXIS 118270, at *8–9 (N.D.Ill. Nov. 8, 2010) (declining to address plaintiff’s challenge to the FCC’s interpretation of “express consent” because “[a] district court must accept the FCC’s interpretation of the TCPA as expressed in their regulations and orders” and, thus, such courts have “no jurisdiction to determine the validity of FCC orders”). In any event, the Court need not resolve this issue because, as discussed supra, in this particular case, it is undisputed that plaintiff did not directly provide the cell phone number that RPM proceeded to dial either at the time that he filled out his credit application with Household or at any other point during his creditor-debtor relationship. FN12. Plaintiff urges this Court to adopt a more narrow interpretation of “prior express consent” in the context of debtor-creditor relationships than that provided by the FCC in its 2008 TCPA Order and by courts following the 2008 TCPA Order. ( See Pl.’s Mem. of Law in Opp’n to Def.’s Cross Mot. for Summ. J. and in Reply to Pl.’s Mot. for Partial Summ. J. (“Pl.’s Opp’n & Reply”) at 3–6.) In so doing, plaintiff points to cases where courts required a plaintiff to take an even more affirmative step to denote its express consent to be contacted on his or her cell phone via an ATDS. See, e.g., Edeh v. Midland Credit Mgmt., 748 F.Supp.2d 1030, 1038 (D.Minn.2010) (“ ‘Express’ means ‘explicit,’ not, as [defendant] seems to think, ‘implicit.’ [Defendant] was not permitted to make an automated call to [plaintiff’s] cellular phone unless [plaintiff] had previously said to [defendant] … something like this: ‘I give you permission to use an automatic telephone dialing system to call my cellular phone.’ ”). However, the Court need not reach the issue of whether an even more narrow reading of “express consent” is warranted than that of the FCC in its 2008 TCPA Order, for, as discussed supra, the uncontroverted evidence demonstrates that no prior express consent was furnished by plaintiff even under the broader reading of the phrase. ] Here, the parties dispute whether plaintiff provided a cell phone number on his initial application for credit. ( See Pl.’s Opp’n Aff. ¶ 2.) However, the present case is different from the scenarios of other cases just discussed in that it is undisputed that the particular cell phone number for plaintiff that RPM received from Trans Union and proceeded to call does not appear anywhere on the application for credit that plaintiff initially submitted to Household. ( See Pl.’s 56.1 ¶ 4; Def.’s 56.1 ¶ 4; Oral Arg., Jan. 22, 2013.) It is also undisputed that plaintiff filled out his credit application back in 2004 or 2005 ( see Pl.’s Aff. ¶ 19), and that he did not obtain the cell phone number that RPM later called him at until a few years later, in 2007 (Def.’s 56.1 ¶ A.11). Moreover, it is uncontroverted that plaintiff never directly provided that new cell phone number (the number that RPM proceeded to call) to RPM or Household, and that RPM received the number from Trans Union, not plaintiff. ( See Pl.’s 56.1 ¶ 10; Def.’s 56.1 ¶ 10.) FN13 Thus, although the parties disagree about whether plaintiff provided his former cell phone number on his application for credit, it is uncontroverted that the cell phone number that RPM actually called was not listed anywhere on plaintiff’s initial credit application, was not known to plaintiff at the time he submitted a credit application to Household, nor was it provided to RPM by plaintiff himself (as it is undisputed that the cell phone number was provided to RPM by Trans Union). This means that even if plaintiff listed a cell phone number on his initial application, thereby expressly consenting to be called at that number via an ATDS, in so doing, he most certainly could not have manifested consent to be contacted at a different cell phone number unbeknownst to him at the time, especially one that he never directly furnished to his creditor or its debt collection agency. See Soppet v. Enhanced Recovery Co., 679 F.3d 637, 643 (7th Cir.2012) (holding that the “prior express consent of the called party” exemption, by its plain language, requires that the person subscribing to the called number at the time the call is made have previously consented to being called, and thus concluding that because the persons subscribing to the called number at the time the call was placed were not the people who furnished the number to the creditor, they had not expressly consented to being called); see also Moore v. Firstsource Advantage, LLC, 07 CV–770, 2011 U.S. Dist. LEXIS 104517, at *30–31 (W.D.N.Y. Sept. 15, 2011) (explaining that the “relevant issue in evaluating ‘prior express consent’ is whether a phone number has voluntarily been provided [by the debtor] to the creditor”). Thus, the Court rejects defendant’s contention that a grant of consent to be called at a prior cell phone number necessarily denotes express consent to be called at any subsequent cell phone number under the facts of this case.
Nor did the Court accept the argument that Plaintiff was not charged for the call as a defense to the TCPA claim.
RPM further attempts to escape liability by arguing that plaintiff’s failure to prove that he was charged for RPM’s calls to his cell phone is fatal to the TCPA claim. (Def.’s Cross Mot. at 19–24.) To make this argument, RPM takes a portion of the statutory language out of context—“for which the called party is charged for the call”—in an effort to impose a requirement on the plaintiff that he demonstrate that he was charged for the calls made by RPM’s ATDS in order to recover under the TCPA. However, as plaintiff indicates, courts faced with this argument have deemed it meritless as a matter of statutory construction, and thus “have routinely held that a plaintiff need not prove that he was charged for a cellular phone call to state a claim under the TCPA.” Castro, 2013 U.S. Dist. LEXIS 115089, at *57–58 (“Under the ‘rule of the last antecedent,’ which provides that, where no contrary intention appears, a limiting clause or phrase should be read as modifying only the noun or phrase that it immediately follows, the Court finds that the phrase ‘for which the called party is charged for the call’ only modifies ‘any service.” ’ (citing cases)); see, e.g., Lynn v. Monarch Recovery Mgmt., No. WDQ–11–2824, 2013 U.S. Dist. LEXIS 84841, at *28–29 n. 37 (D. Md. June 17, 2013) (“[Defendant] does not dispute that, under the doctrine of last antecedent, the phrase ‘for which the called party is charged for the call’ only modifies ‘any service.’ “ (citing cases)); Manfred v. Bennett Law, No. 12–CV–61548, 2012 U.S. Dist. LEXIS 173935, at *5 (S.D.Fl. Dec. 7, 2012) (“[T]he Court notes that the language of the statute makes it apparent that Plaintiff need not allege that he was charged for the call if he has alleged that the call was made to his cell phone.”); Gutierrez v. Barclays Grp., No. 10cv1012 DMS (BGS), 2011 U.S. Dist. LEXIS 12546, at *14–15 (S.D.Cal. Feb. 9, 2011) (explaining that a plaintiff need not show that he was charged for the calls at issue in order to prevail under the TCPA); Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1009 (N.D.Ill.2010) (“[R]eading the FCC’s statement to require that a party be charged for a call in order for a violation of § 227 to occur is contrary to the plain language of the statute. Due to the occurrence of two disjunctive prepositions in the relevant portion of § 227, the phrase ‘for which the called party is charged for the call’ only modifies ‘any service.’ ”).FN17 This Court agrees with the reasoning employed by numerous other courts—both within and outside of this circuit—and concludes, therefore, that plaintiff’s failure to prove that he was charged for any of RPM’s calls to his cell phone has no bearing on the efficacy of his TCPA claim.
As to willfulness, the Court held that each call must be evaluated, and the fact that the defendant had been sued under the TCPA a number of times previously did not by itself establish willfulness.
In regards to plaintiff’s assertion that he informed RPM, on numerous occasions, that the number it was calling was for his cell phone and that he no longer wished to be contacted by RPM at that number, RPM disputes that fact and points to the collection notes of its representatives taken during calls between the parties that are devoid of any documentation of such an exchange. ( See, e.g., Def .’s 56.1 ¶¶ 15, 18, 19.) Again, given this factual dispute, a jury must assess the credibility of both plaintiff and RPM’s witnesses at trial on this issue. Moreover, even if plaintiff did inform RPM of the fact that they were calling his cell phone and that he no longer wished to receive calls from RPM on that number, and even if that was enough to earmark a knowing and willful violation on the part of RPM by continuing to call, a factual issue exists as to when exactly that exchange occurred. Because treble damages are assessed based on each individual violation, the exact point at which RPM’s actions became knowing and willful (assuming they ever did) would need to first be ascertained—something that this Court cannot determine based on the disputed facts presently before it. With respect to the other cases plaintiff highlights in which RPM has been sued for similar conduct, the fact that RPM has been found to have violated the TCPA in other instances does not suggest, as a matter of law, that they acted knowing and willfully when they used their ATDS to place calls to plaintiff’s cell phone. For all of these reasons, the Court finds that the question of treble damages cannot be resolved on a motion for summary judgment. Accordingly, because genuine issues of material fact exist with regard to the knowledge and/or willfulness of RPM, both parties’ requests for summary judgment on this issue is denied. See Castro, 2013 U.S. Dist. LEXIS 115089, at *61–63 n. 28 (denying summary judgment on the issue of treble damages because conflicting versions of events that bore on the knowledge and/or willfulness of the defendants’ alleged TCPA violations needed to be resolved by a jury at trial).