In Lamont v. Furniture North, LLC, 2014 WL 1453750 (D.N.H. 2014), Judge McCafferty found that a Husband, whose wife had provided his cellular telephone number in connection with a purchase transaction, still stated a claim under the TCPA because the husband had not given prior express consent to be called on his cellular telephone number.

Except where otherwise indicated, the following facts are drawn from the Lamonts’ complaint and are taken to be true for the limited purpose of ruling on the motion before the court. On December 7, 2013, Mrs. Lamont purchased an end table, a bookcase, and two bunk beds from BDF. BDF advised Mrs. Lamont that the items would be delivered fully assembled and would arrive during a three-hour window of time on the day of delivery. BDF also informed Mrs. Lamont that the Lamonts would be advised of the delivery ahead of time. The Lamonts have conceded that Mrs. Lamont gave BDF both her own cellular telephone number and her husband’s. ¶  On December 12, BDF delivered the end table, bookcase, and a partial bunk bed to the Lamonts’ residence. The bookcase was damaged and taken back by BDF. BDF left the pieces of the bunk bed on the Lamonts’ bedroom floor. On December 19, BDF brought another bookcase and the remainder of the bunk bed to the Lamonts’ home. The Lamonts later discovered that the bookcase was not fully assembled.  ¶   A second bunk bed was scheduled to be de-livered at the Lamonts’ home on January 2, 2014, between 1:50 p.m. and 4:50 p.m. At approximately 1:00 p.m., Mrs. Lamont received a call to notify her that BDF’s delivery truck would be arriving closer to 1:30 p.m. than 1:50 p.m. Mrs. Lamont returned home by 1:30 p.m., but the delivery truck never arrived. Mrs. Lamont called BDF, and BDF informed her that the delivery had been cancelled.  ¶  On January 9, BDF delivered part of the second bunk bed. However, the second bunk bed was missing a trundle. As of January 23, BDF had still not delivered the trundle.  ¶  Before each delivery, BDF called the Lamonts on their respective cellular telephones with automated messages regarding the delivery. The Lamonts received at least four automated calls prior to each delivery. BDF also made at least one additional automated call to the Lamonts after the January 9 delivery requesting that they take a survey.

The District Court stated that the wife stated no claim under the TCPA, but the husband – whose number had been provided by his wife – did state a claim.

The reasoning in this line of cases is persuasive. By giving her phone number to BDF when she bought merchandise, Mrs. Lamont also gave BDF express consent to use an autodialer to contact her. Thus, BDF is entitled to dismissal of Mrs. Lamont’s claim under the TCPA.  ¶  However, Mr. Lamont’s claim stands on a different footing. Whereas Mrs. Lamont gave BDF her number, the only allegation regarding Mr. Lamont’s number is that Mrs. Lamont gave that number to BDF. BDF argues that case law indicates that when a person gives out a spouse’s telephone number, that act constitutes giving the spouse’s express permission to be called by the entity to which the telephone number was given. BDF cites Osorio v. State Farm Bank, F.S.B., 859 F.Supp.2d 1326, 1330 (S.D.Fla.2012), and Gutierrez v. Barclays Grp., No. 10cv1012 DMS (BGS), 2011 WL 579238 (S.D.Cal. Feb. 9, 2011), for this proposition. However, Gutierrez is readily distinguishable from the present case, and not only has Osorio recently been reversed, see Osorio v. State Farm Bank, F.S.B., ––– F.3d ––––, 2014 WL 1258023 (11th Cir. Mar.28, 2014), but, even prior to its reversal, Osorio was of no assistance to BDF.  ¶   In Gutierrez, a husband listed his wife’s cellular telephone number as his home number on a credit card application. See 2011 WL 579238, at *1. The court noted that, while being deposed, the husband admitted to asking his wife for her permission to list her number on credit card applications, and his wife admitted to giving him permission. Id. at *3. The court therefore held that the husband had “common authority” over his spouse’s cellular telephone that enabled him to give the credit card company “prior express consent” to use her number. Id. at *3 (internal quotation marks omitted). In Osorio, one partner in an unmarried couple gave the other partner’s phone number to a bank. 859 F.Supp.2d at 1327. Noting that the couple lived together, raised their child together, subscribed together to the same phone company, and that the first partner had given out the second partner’s number as her own three times, the court held that the first partner had common authority over the second partner’s phone. Id. at 1330. The court therefore held that the first partner had given the bank express con-sent to call the second partner’s number. Id. at 1326, 1330. On appeal, the Eleventh Circuit reversed and held that, while in some instances a person may authorize another adult to give their consent to call their cellular telephone, “we cannot say that all coinhabitants possess such authority as a matter of law.” Osorio, ––– F.3d at ––––, 2014 WL 1258023, at *9. Because there was a factual dispute whether the first partner acted as the second partner’s agent when she gave the bank his contact number, the court held that “[t]he issue must instead be submitted to a factfinder.” Id.  ¶  Gutierrez was decided at summary judgment and contained much more information about the couple in the case than has been revealed about the Lamonts. Before being reversed on appeal, Osorio was also decided at summary judgment and similarly contained much more information about the relationship of the couple at issue than this court knows about the Lamonts. Thus, even prior to reversal, Osorio did not support BDF’s case. On appeal, any argument that Osorio supported BDF’s position eroded completely when the Eleventh Circuit determined that, even with the information available at summary judgment, the couple’s relationship and living situation in the case did not automatically allow one member of the couple to give the other’s prior express consent to call the other’s cellular phone.  ¶  In the present case, the material facts alleged are as follows: (1) Mr. and Mrs. Lamont reside at the same address; (2) Mrs. Lamont gave Mr. Lamont’s cellular phone number to BDF; (3) BDF autodialed Mr. Lamont’s number. At this stage, there is not enough information for the court to hold that Mr. Lamont consented to the calls. ¶  With regard to Mr. Lamont’s cellular phone, the Lamonts have stated a viable claim under the TCPA. The portion of the TCPA claim dealing with Mrs. Lamont’s cellular phone, however, is dismissed.