In Andersen v. Harris & Harris, Ltd., 2014 WL 1600575 (E.D.Wis. 2014), Judge Stadtmeuller found that a TCPA defendant met its burden of proof of demonstrating that the Plaintiff provided express consent to be called on his cellular telephone, and rejected the Plaintiff’s self-serving ambiguous evidence to the contrary.
As mentioned above, H & H cannot have violated the TCPA if Mr. Andersen consented to the calls made by H & H. See 47 U.S.C. § 227(b)(1)(A) (making it illegal “to make any call (other than a call … made with the prior express consent of the called party).”). But, the existence of consent is an affirmative defense, and therefore H & H bears the burden to prove it. . . . H & H correctly points out that the FCC has issued a declaratory order that is precisely on point: Because we find 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, 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. … Calls placed by a third party collector on behalf of that creditor [to whom prior express consent was provided] are treated as if the creditor itself placed the call. (Docket # 49, at 13 (citing In re Rules & Regs. Im-plementing Tel. Consumer Prot. Act of 1991, FCC Declaratory Ruling No. 07–232, 23 FCC Rcd. 559 ¶¶ 9–10 (Jan. 4, 2008) (alterations from H & H’s brief))). The FCC has said elsewhere that: [P]ersons 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. Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached. In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992). ¶ Given those standards, the Court has no doubt that Mr. Harris consented to receive the phone calls in question. As discussed in the factual background section, above, the evidence establishes that WE Energies received Mr. Andersen’s cell phone number from Mr. Andersen himself. Accordingly, under the FCC guidance and myriad cases, the Court must conclude that Mr. Andersen consented to be called on his cell phone number by WE Energies. . . . Moreover, because H & H was acting as a third party collector on WE Energies’ behalf, H & H is treated as having Mr. Andersen’s consent as if WE Energies had “itself placed the call.” In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, FCC Declaratory Ruling No. 07–232, 23 FCC Rcd. 559 ¶ 10. ¶ Mr. Andersen objects that he provided his cell phone number with respect to some other address (he does not specify which other address), and that this defeats his consent. He argues that “there is far more than a scintilla of doubt regarding whether Plaintiff had one account or multiple accounts at multiple addresses .” This matters, according to Mr. Andersen, because consent applies only insofar as he provided his cell phone number “during the transaction that resulted in the debt owed.” . . . Mr. Andersen argues that this means that his consent cannot be imputed from one of his addresses to another (note that Mr. Andersen, himself, has done everything in his power to obfuscate where he lived at specific times), but the evidence submitted by WE Energies shows that WE Energies obtained Mr. Andersen’s cell phone number during conversations about his account, which in-cluded service to the 505 Lake Street address. The Court is satisfied that the evidence establishes that WE Energies received Mr. Andersen’s consent “during the transaction that result in the debt owed,” in satisfaction of In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, FCC Declaratory Ruling No. 07–232, 23 FCC Rcd. 559,565. ¶ Mr. Andersen tries to bolster his point by quoting the same FCC order’s statement that “prior express consent provided to a particular creditor will not entitle that creditor (or third party col-lector) to call a consumer’s wireless number on behalf of other creditors, including on behalf of affiliated entities.” . . . How interesting that Mr. Andersen fails to emphasize the most important portion of that phrase, which notes that consent provided to one creditor will not entitle that creditor to call a consumer on behalf of other creditors or affiliated entities. To any reasonable person, that is simply not what is happening here, and the reference quoted above simply does not apply. ¶ For all of these reasons, the Court determines that Mr. Andersen provided consent to H & H, and thus that H & H did not violate the TCPA by using an autodialer to call Mr. Andersen to collect the debt he owed to WE Energies.
This District Court found that the Plaintiff could not revoke consent by having an outgoing voicemail message stating that revoked any consent.
Of course, that determination only holds if the Court determines that Mr. Andersen’s outgoing voicemail message failed to revoke his consent. ¶ This is a two-part question. First, there is a legal question of whether consent under the TCPA can ever be revoked. Second, if consent can be revoked, then the Court must determine whether Mr. Andersen’s outgoing voicemail message was effective to do so. ¶ As to the first question, there is some inconsistency among the authorities. H & H cites two district court cases holding that consent is irrevocable under the TCPA. (Docket # 49, at 16 (citing Saunders, 910 F.Supp.2d at 468–69 (E.D.N.Y.2012); Chavez v. The Advantage Group, 2013 WL 4011006, *4 (D.Colo. Aug. 5, 2013))). Mr. Andersen points out that the FCC and the Third and Eleventh Circuits have held that consent is revocable. (Docket # 54, at 18–19 (citing In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15391, 15398 (Nov. 26, 2012); Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir.2013); Osorio v. State Farm Bank, F.S.B., 2014 U.S.App. LEXIS 5709, 28–29 (11th Cir.Fla. Mar. 28, 2014))). Generally speaking, Mr. Andersen’s authority is the more persuasive on the issue. ¶ The Court need not finally resolve that issue, however, because even if consent is revocable, Mr. Andersen’s voicemail is not enough to have done so, in this case. To begin, there is no authority to support the contention that an outgoing message is sufficient to revoke consent. The Breslow v. Wells Fargo Bank, N.A., case, cited by Mr. Andersen, is inapposite because, while it does seem to impose a duty on auto-mated callers to occasionally check the identity of the party it is calling, that duty has nothing to do with checking to see whether a caller has revoked consent. 857 F.Supp.2d 1316, 1319–22 (S.D.Fla.2012). Moreover, Mr. Andersen’s proposal that his outgoing messages should be sufficient to revoke consent would create a totally unworkable rule. It would create a trap for all debt collectors who use automatic dialers: in essence, it would allow individuals to consent to receive automated calls, but then expose the debt collectors to liability as soon as the individual put up an outgoing voicemail message revoking consent, regardless of whether the debt collector actually received the message. And, of course, the debt collector would be extremely unlikely to receive any notice of that revocation in the meantime, by virtue of the nature of their collection services, using automatic dialers. If Mr. Andersen were to have his way, the entire notion of consent under the TCPA seems like it would be undermined.