In Taylor v. Universal Auto Group I, Inc., 2014 WL 2987395 (W.D.Wash. 2014), Judge Strombom rejected the argument that the TCPA requires the Plaintiff to have incurred a cost for the call, but agreed that Plaintiff’s providing his cellular telephone number to a predecessor business constituted consent to be called by the successor business.

Tacoma Dodge Chrysler Jeep (Tacoma Dodge) opened for business in December 2009, after Chrysler had closed its prior dealerships in the area and entered bankruptcy. Tacoma Dodge operates in the same location as the prior dealership. Mr. Taylor purchased two vehicles and had them serviced at the prior dealership. After Tacoma Dodge opened for business it sent a pre-recorded “welcome” phone message recorded by the new owner to customers of the prior dealership—including Mr. Taylor. . . .  Mr. Taylor clearly states (based on his personal knowledge) that he never “provided” his phone number to Tacoma Dodge. Mr. Taylor admits, however, that he had provided his phone numbers to the prior dealership.

The District Court found that the customer incurring a charge for the calls was not a pre-requisite to suit.

This Court agrees with the analysis of the Eleventh Circuit Court of Appeals in Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir.2014) regarding the charge requirement. In the end, we go back to the basic question of whether the TCPA itself exempts all auto-dialed calls for which there is no charge. The applicable canons of construction indicate that it does not. To repeat the key language, the Act prohibits autodialed calls “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(A)(1)(iii) FN1. The rule of the last antecedent requires the phrase “for which the called party is charged for the call,” id., “to be applied to the words or phrase immediately preceding [i.e., “any service”], and … not to be construed as extending to or including others more remote,” see Bingham, Ltd. v. United States, 724 F.2d 921, 925 n. 3 (11th Cir.1984) (internal quotation marks Omitted); namely, “paging,” “cellular telephone,” or “mobile radio” services, 47 U.S.C. § 227(b)(A)(1)(iii). We therefore presume that Congress did not intend the phrase “for which the called party is charged for the call” to apply to cellular telephone services. Osorio, Id. at p. 1257. The Court in Osorio also noted that an interpretation of 47 U .S.C. § 227(b)(1)(A)(iii) that exempts all autodialed calls to cellular phones for which the called party is not charged per call would clash with § 227(b)(2)(C) of the same statute. 47 U.S.C. § 227(b)(2)(C) states the Commission “may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect.” As noted by the Eleventh Circuit, “[t]he provision allowing for the promulgation of exemptions would be meaningless if, as State Farm proposes, § 227(b)(1)(A)(iii) already exempts all calls for which the party is not charged per call.” Osorio, Id. at p. 1258.

The District Court found that the Plaintiff had consented to be called, and granted the Defendant’s Motion to Dismiss.

While the parties disagree regarding the words that should be used to describe how the Defendant obtained Mr. Taylor’s cell phone number, it is clear that he confirmed his cell phone number shown on the various service orders and he authorized the Defendant to utilize that phone number. It is also undisputed that the calls made to Mr. Taylor’s cell phone number were all business related. The undersigned agrees with the Central District of California’s analysis of the consent defense set forth in great detail in Baird v. Sabre Inc., 2014 WL 320305 (C.D.Cal). As noted, “[i]n a 1992 rulemaking action implementing the TCPA, the FCC ruled 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.’ In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C. C.R. 8752, 8769 ¶ 31 (1992).” Baird, Id. at 82. The Court in Baird defined the question in that case as follows: “whether the earlier 1992 Order defined ‘prior express consent’ so that the mere act of providing a cellphone number to a business in connection with a transaction constitutes the consent required under the TCPA to receive autodialed calls.” The Court answered that question in the affirmative. Under the FCC’s definition set forth above, it is undisputed that Mr. Taylor “knowingly released” his phone number to the Defendant, and by doing so gave permission to be called at that number by an automated dialing machine. See, also, Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D.Cal. 2014).   The Defendant’s motion to dismiss the Plaintiff’s TPCA claim based on the affirmative defense of consent is GRANTED as it pertains to all the calls made by the Defendant in 2011 and 2012. Neither of the parties adequately addressed the pre-recorded phone message sent by the Defendant in December 2009. In fact, the Court is not certain that the Plaintiff’s claim is based on that call since he was not aware it was made prior to the Defendant’s filing their motion for summary judgment.