District Court (Pa.) Says TCPA, unlike FDCPA, Permits Counter-Claim for the Subject Debt where “Express Consent” is At Issue

In Miller v. 3G Collect, LLC, 2014 WL 4634966 (E.D.Pa. 2014), Judge Buckwalter retained jurisdiction in a TCPA case over the underlying debt itself.

Thus, unlike the TILA and FDCPA, the explicit terms of the TCPA make the giving of prior express consent by the debtor to the debt collector an absolute defense to liability. See Baird v. Sabre Inc., 995 F.Supp.2d 1100, 1106–07 (C.D.Cal.2014) (holding that consumer gave permission to be called at cell phone number she gave to airline when she booked flight reservations on its website, and, thus, she knowingly released her cell phone number to airline and consented to be called at that number by an automated dialing machine, under the TCPA); Chavez v. Advantage Grp., 959 F.Supp.2d 1279, 1281 (D.Colo.2013) (finding no liability under TCPA when debtor expressly consented to be contacted by debt collector on her cellular phone by providing her number to creditor); Jordan v. ER Solutions, Inc., 900 F.Supp.2d 1323, 1327 (S.D.Fl.2012) (holding that the TCPA allows a collector to make automated or prerecorded collection calls if the called party has given prior express consent; consumer gave express consent to automated collection calls when she purchased items from defendant and, as a term and condition of her purchase, agreed that store from which she purchased items, or any other owner or servicer of her account, could use any information provided to contact her regarding her account, including for debt collection, and agreement also stated she agreed contact could be made using automated dialing equipment and prerecorded messages); Saunders v. NCO Fin., Sys., Inc., 910 F.Supp.2d 464, 467 (E.D.N.Y.2012) (“Here, plaintiff concedes that by listing only his cell phone number with PACER, he gave both PACER and NCO, its collection agent, ‘prior express consent.’ This is a concession that plaintiff must make, as the authorities are almost unanimous that voluntarily furnishing a cellphone number to a vendor or other contractual counterparty constitutes express consent.”).  Defendant’s Counterclaim, in this case, asserts that on October 3, 2013, a request for a collect call was received by Defendant from an initiating party to be placed through to a telephone number that Defendant believes is associated with Plaintiff Yvette Miller. (Countercl.Compl.¶ 2.) As part of receiving the request to accept a collect phone call, Plaintiff would have heard a series of instructions which directed her to follow prompts that allowed her either to accept the collect call and authorize Defendant to invoice her for the call via her cellular telephone, or to decline to receive the collect call. ( Id. ¶ 3.) On October 3, 2013, Plaintiff authorized Defendant to complete the collect call by following the series of prompts, which included making certain key strokes on the telephone both to accept the call and to verbally authorize 3G to connect the collect call and to bill her for the call by text messaging. ( Id. ¶ 5.) Defendant then connected the collect call to Plaintiff’s cellular telephone. ( Id. ¶ 6.) Despite these authorizations, Plaintiff has failed and refused to pay the invoice or the collect call that was transmitted to her on or about October 4, 2013. ( Id. ¶ 7.)   Had Plaintiff’s Complaint and Defendant’s Counterclaim shared nothing more than the same initial transaction—the original collect phone call—the Court would concur that the Counterclaim is not compulsory. Contrary to Plaintiff’s argument and unlike the foregoing TILA and FDCPA cases, however, both the Complaint and the Counterclaim share more than the same originating transaction. They are logically related in that by proving its Counterclaim— i.e., that Plaintiff consented to receiving a collect call on her cell phone and to paying the associated charges—Defendant effectively defends against the TCPA claim by proving that Plaintiff provided express consent to being billed at that cell phone number. In other words, a ruling as to the validity of Defendant’s Counterclaim necessarily dictates the outcome of a ruling on Plaintiff’s Complaint and vice versa. To require that these claims be litigated separately—one in state court and one in federal court—would result in “substantial duplication of effort and time by the parties and the courts.” Judicial economy therefore counsels the Court to deem the Counterclaim compulsory. In turn, Plaintiff’s Motion to Dismiss for lack of jurisdiction is denied