Cases Holding that TCPA Does Not Allow Revocation of Consent
In Saunders v. NCO Financial Systems, Inc., 2012 WL 6644278 (E.D.N.Y. 2012), Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could not be revoked.
In addition, plaintiff’s claim fails legally because, like the Court in Gager v. Dell Financial Services, LLC, No. 3:11–CV–2115, 2012 WL 1942079 (W.D.Pa. May 29, 2012), I see nothing in the TCPA that gives a consumer two bites at the apple. That is, there is no provision in the TCPA, unlike the FDCPA, see 15 U.S.C. § 1692c(c), that allows withdrawal of a voluntarily-given, prior express consent to call a cell phone number. 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. It is not as if we are dealing with a fundamental constitutional right where a waiver may, under limited circumstances, be withdrawn. See e.g., Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350 (determining that if a criminal suspect waives his right to counsel after receiving Miranda warnings, law enforcement officers are free to question him, but if he requests counsel at any time during the interview, the suspect may not be further questioned until counsel has been made available). This is a narrow statutory right not to receive automated calls on a cellphone. A consumer that voluntarily gives it up need not have an opportunity to change his mind later; he has withdrawn from the protection of the statute. He is no worse off than all other consumers were before passage of the statute, because he has opted out of the statute. Nor is there anything unduly harsh about this conclusion; the consumer, if he is a debtor, remains protected from harassment by the FDCPA. I recognize that unlike the Court in Gager, other district courts have ruled otherwise, some holding that consent can be withdrawn as long as the request to withdraw is in writing, see e.g., Moore v. Firstsource Advantage, LLC, No. 07–CV–770, 2011 WL 4345703 (Sept. 15, 2011 W.D.N.Y.); Starkey v. Firstsource Advantage, LLC, No. 07–CV–662A, 2010 WL 2541756 (Mar. 11, 2010 W.D .N.Y.), and others holding that an oral direction to withdraw is sufficient. See e.g., Adamcik v. Credit Control Services, Inc., 832 F.Supp.2d 744 (W.D.Tex.2011). I respectfully disagree with both lines of cases. The reason there is a split among these authorities is because the statute provides for neither result, so those courts that wish to permit withdrawal of consent are forced to apply their own policy preferences. If Congress wishes to change the statute, it can—it has shown in the FDCPA that it knows how to provide for withdrawal of consent when it wants to—but I do not think it is for the courts to read a substantive right into a statute when it is quite conspicuously missing.
In Gager v. Dell Financial Services, LLC 2012 WL 1942079 (M.D.Pa. 2012), Judge Mariani found irrelevant the whole debate over whether the TCPA requires revocation of consent to be called on a cellular telephone to be in writing or not. Judge Mariani instead found that nothing in the TCPA allows consent, once given, to be revoked by the consumer. Instead, a consumer who gives his or her cellular telephone number in the application must limit consent at that time. Judge Mariani explained:
Plaintiff provides several out of circuit, district court cases for the proposition that withdrawal of consent to contact after the consummation of a credit contract is permissible under the TCPA; nevertheless, these cases discuss only the methods of revocation (written notice versus sufficiency of oral revocation), and do not address the propriety of revocation itself or when such revocation may be permitted. See, e.g., Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal.2011); Adamcik v. Credit Control Services, Inc., 2011 WL 6793976 (W.D.Tex.2011); Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y.2010); Cunningham v. Credit Mgmt., L.P., 2010 WL 3791104 (N.D.Tex.2010); Moore v. Firstsource Advabtage, LLC, 2011 WL 4345703 (W.D.N.Y.2011); Moltz v. Firstsource Advantage, LLC, 2011 WL 3360010 (W.D.N.Y.2011). Every one of these cases, however, is distinguishable from the present matter in that they (1) concerned circumstances requiring the application of the TCPA in conjunction with the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq ., and as a result, infused FDCPA mandates into the TCPA, or (2) assume, without support, that a revocation of consent to contact under the TCPA is authorized by the statute and its implementing regulations. In those cases initiated under both the TCPA and FDCPA, where the defendants were “debt collectors” under the FDCPA, the courts’ analyses and ultimate determinations have no application here. ¶ The cases cited by Plaintiff and Defendant fall into two broad categories, generally represented by the holdings of Starkey, supra, and Adamcik, supra. In Starkey, the plaintiff provided her cellular telephone number to a cable company in connection with the establishment of an account. Following the cable company’s failure to collect a debt from the plaintiff, the cable company turned the file over to a third-party collection agency. After receiving many prerecorded calls from the collection agency, the plaintiff contacted a live operator and orally withdrew consent to be called on that number. The plaintiff sued the debt collector for violations of both the TCPA and the FDCPA. The court analyzed both statutes and found that “debt collection efforts are governed by the FDCPA,” thus requiring any request to cease collection calls under the TCPA to be in writing so as to comport with the withdrawal of consent provisions of the FDCPA. Starkey, 2010 WL 2541756, at *6. The Starkey court essentially infused the written withdrawal requirement of the FDCPA into the TCPA because the debt collector in that case was subject to both statutes. ¶ …In the line of cases following the court’s reasoning in Starkey, various district courts have read the written notice requirement governing the withdrawal of consent to contact under the FDCPA into the TCPA. In fact, these courts have construed the TCPA to include a withdrawal of consent provision that cannot be found in the text of the statute. See, e.g., Cunningham, 2010 WL 3791104 (N.D.Tex.2010) (following Starkey, withdrawal of consent to contact under TCPA must be in writing to comport with pro-visions of FDCPA); Moore, 2011 WL 4345703 (W.D.N.Y.2011) (following Starkey, withdrawal of consent to contact under TCPA must be in writing to comport with provisions of FDCPA); and Moltz, 2011 WL 3360010 (W.D.N.Y.2011 (following Starkey, FDCPA found to override TCPA in debt collection matters, thus requiring written withdrawal of consent to be contacted). Each of those cases, like Starkey, is distinguishable from the matter sub judice because the litigants assert claims under the FDCPA against “debt collectors” as that term is defined under the FDCPA. Here, Defendant is not a “debt collector,” and none of the provisions governing debt collection under the FDCPA are applicable. Plaintiff is left only with the protections of the TCPA as that individual statute is written. . . ¶ In Gutierrez, 2011 WL 579238 (S.D.Cal. Feb. 9, 2011), the Southern District of California also broke with Starkey, and held that oral revocation of consent to contact under the TCPA was sufficient. Id. at *3–4. Gutierrez did not involve the FDCPA, and the court found that the facts buttressing the Starkey decision were factually distinct from those presented in a case involving the TCPA alone. Id. at *3. Specifically, the court noted that “Starkey addressed the separate question of whether written notice is required to cease debt collection calls, particularly under the [ FDCPA].” Id. The Gutierrez court, however, still recognized that revocation of consent was still possible after the consummation of a credit contract. Id. at *4. ¶ We do not find the statutory construction and reasoning in Starkey, Adamcik, or Gutierrez, to be persuasive, and expressly decline to hold that the TCPA, or any FCC regulation or advisory opinion construing the statute, contains any provision permitting this Court to find post-formation revocation of consent authorized under the provisions of the TCPA. While the Starkey line might have applicability if Defendant were subject to the FDCPA, under the prevailing law of the Third Circuit, Defendant is not a “debt collector” as defined by that statute; thus, the right to withdraw consent provisions enacted under the FDCPA do not apply to Defendant, and we do not find any TCPA provision allowing revocation, so that Plaintiffs claims that her rights were violated under the TCPA, assuming all of the facts in her Amended Complaint as true, do not state a cause of action. ¶ Furthermore, although the 1992 TCPA Order permits prerecorded calls to mobile telephones if a debtor consents to such calls, the “absent instructions to the contrary” language does not explicitly or im-plicitly state that a later revocation is permitted. See 1992 TCPA Order, at 8769. A plain reading of the regulation indicates that such “instructions to the contrary” are to be provided at the time a person “knowingly release[s]” her telephone number, thereby giving her “invitation or permission to be called” at that number. See 1992 TCPA Order, at 8769. For instance, if a debtor listed her mobile telephone number on an application for credit, and at the time she submitted the application she instructed the creditor not to call her on that number for debt collection purposes, it is hardly a question that the debtor has issued “instructions to the contrary,” so that consent to contact on that mobile number is absent. The FCC’s use of the phrase “absent instructions to the contrary” does not provide a basis for this Court to find such instructions as providing a method of revocation. ¶ Finally, “the FCC has determined that all debt-collection circumstances are excluded from the TCPA’s coverage.” Osorio v. State Farm Bank, No. 11–61880, 2012 WL 1671780, at *4 (S.D.Fla. May 10, 2012). Under the TCPA, “as clearly stated in the December 28, 2007 FCC Declaratory Ruling, calls regarding debt collection or to recover payment are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’ “ Id. at *5. The FCC has “unequivocally stated” that “calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing” and “calls regarding debt collection … are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’ “ Meadows v. Franklin Collection Servs., Inc., 414 F. App’x 230, 236 (11th Cir.2011). ¶ Accordingly, when viewed through the prism of Iqbal and Twombly, and taking all allegations set forth in Plaintiffs Amended Complaint as true, Plaintiff fails to state a cognizable cause of action, and a dismissal of her claim is required.
Cases holding that revocation must be in writing.
In Brook v. Suncoast Schools, FCU, 2012 WL 6059199 (M.D.Fla. 2012), Judge Hernandez-Covington suggests that revocation of consent under the TCPA is ineffective unless given in writing, but allowed the Complaint to stand.
Suncoast further argues that, although the Cardosos have alleged that Suncoast “made multiple collection calls to [the Cardosos’] personal cell phone utilizing an automatic telephone dialing system after [the Cardosos] told [Suncoast that it] did not have permission to call [the Cardosos]” (Doc. # 1 at ¶ 36), this allegation is insufficient to state a claim under the TCPA because “revocation of a debtor’s consent to be contacted on a cellular number under TCPA must be made in writing and delivered to the creditor.” (Doc. # 5 at 11) (citing Osorio v. State Farm Bank, F .S.B., 859 F.Supp.2d 1326, 1331 (S.D.Fla.2012)). ¶ The Court acknowledges Suncoast’s argument that a verbal revocation would be insufficient to revoke “prior express consent” under the TCPA. However, at this juncture, this argument is inconsequential—especially considering that the Complaint does not expressly state the method by which the Cardosos “told” Suncoast that it lacked permission to call them. The Court must construe the facts alleged in the Complaint in the light most favorable to the Cardosos. Accordingly, because the Cardosos have alleged simply that Suncoast continued to make these collection calls after the Cardosos told Suncoast that it lacked permission to make any further calls (Doc. # 1 at ¶ 36), thus implying that Suncoast made the calls without the express consent of the called parties, the Cardosos have sufficiently alleged a violation of the TCPA, and the Court denies Suncoast’s motion to dismiss as to Count II.
In Osorio v. State Farm Bank, F.S.B.-– F.Supp.2d —-, 2012 WL 1671780 (S.D.Fla. 2012), Judge Middlebrooks found that the debtor’s consent to be called on her cell phone transferred to her co-habitating significant other, so as to eliminate liability under the TCPA. The District Court also found revocation of consent ineffective because it was not made in writing, explaining:
While the Eleventh Circuit has never addressed this issue, a few district courts outside this circuit considered whether a revocation under the TCPA must be in writing. After reviewing the decisions provided by both Parties, I find the collection of cases filed by the district courts in the Western Dis-trict of New York exceedingly persuasive See, e.g., Starkey v. Firstsource Advantage, L.L.C., No. 07–CV–662A, 2010 WL 2541756 (W.D.N.Y.Mar.11, 2010); see also Moltz v. Firstsource Advantage, Inc., Case No. 08–CV–239S, 2011 WL 3360010, (W.D.N.Y. Aug. 3, 2011); see also Moore v. First-source Advantage, LLC, No. 07–CV–770, 2011 WL 4345703, at *11 (W.D.N.Y. Sept. 15, 2011). In Starkey v. Firstsource Advantage, L.L.C., plaintiff filed both TCPA and FDCPA claims against a debt collector. Starkey v. Firstsource Advantage, L.L.C., No. 07–CV–662A, 2010 WL 2541756 at *1 (W.D.N.Y.Mar.11, 2010). Similar to the facts in the instant matter, at the time plaintiff activated her cable services she provided prior express consent to her provider that it could call her cell phone; however, after she defaulted on her payments, plaintiff at-tempted to revoke that consent orally. The court held that because plaintiff authorized her provider to call her cell phone, her provider’s collection efforts were not governed by the TCPA because “as clearly stated in the December 28, 2007 FCC Declaratory Ruling, calls regarding debt collection or to recover payments are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’ “ Id. at *5. Since the provider’s actions constituted debt collection practices, the court ruled that the legality of the provider’s efforts was governed by the FDCPA, which does not recognize verbal revocations. Id. at *5. After consid-ering Starkey, and subsequent cases that rely upon Starkey, I find Osorio’s and Betancourt’s verbal revocations insufficient as a matter of law to revoke Betancourt’s prior express consent.
In Frausto v. IC System, Inc., 2011 WL 3704249 (N.D.Ill. 2011), Judge Zagel held that a debt collector was entitled to rely on the ‘consent’ obtained by the original creditor to call a consumer on his cellular telephone under the TCPA. “The dispositive issue here is the application of the “prior express consent” defense to the facts of this case. Defendant claims the defense applies because Plaintiff provided his mobile phone number in applying for his PayPal account, that that number is the one used to pursue the debt, and that for purposes of pursuing the debt they step into the shoes of PayPal. Plaintiff counters that the terms of PayPal’s agreement only authorize PayPal itself to use his number to contact him regarding the debt. He further argues that he revoked his consent. ¶ Plaintiff’s first argument is plainly off the mark, because even if I assume that the contract limited use of his number to PayPal, the FCC’s ruling makes it clear that Defendant is, for purposes of the TCPA “PayPal” when it calls Plaintiff. See In re: Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F .C.C.R. at ¶ 9 (F.C.C.2007)” Judge Zagel also held that revocation of consent must be in writing. Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y. Mar.11, 2010) (finding when the plaintiff activated her account with the cable provider and provided the cable provider with her cellular telephone number, she did not revoke her consent for telephone calls from the cable provider’s collection agency under the TCPA when her revocation was not put into writing.) Moore v. Firstsource Advantage, LLC, 2011 WL 4345703 (W.D.N.Y. 2011)
Plaintiff also contends that, even if Defendant did have “prior express consent” to call the phone number in question, Plaintiff revoked that consent during her June 29, 2007 call to Defendant, during which she requested that the calls to her cell phone stop. Plaintiff asks for summary judgment on her TCPA claims for all autodialed or prerecorded calls to her cell phone after that date. In two related cases in this District, it has been held that a verbal request to cease debt collection calls to a cellular phone will not be sufficient to revoke “prior express consent” under the TCPA. Moltz, 2011 WL 3360010, at *5 (because Congress has stated that debt collection efforts are governed by the FDCPA, when calls to a cell phone are made for debt collection purposes, the FDCPA’s requirement that a request to stop the calls be made in writing applies); Starkey v. Firstsource Advantage, LLC, Case No. 07–CV662A, 2010 WL 2541756, *6 (W.D.N.Y. Mar.11, 2010) (same). See also Cunningham v. Credit Mgmt., L.P., 2010 WL 3791104, *5 (N.D.Tex. Aug.30, 2010) (following Starkey ); but see Gutierrez v. Barclays Group, 2011 WL 579238, *4 (S.D.Cal. Feb.9, 2011) (holding that verbal revocation of consent to debt collection calls to a wireless number is sufficient under the TCPA).
Cunningham v. Credit Management, L.P., 2010 WL 3791104 (N.D.Tex. 2010)
Furthermore, in a similar case decided this year, the Western District of New York held that in debt collection cases, revocation of consent under the TCPA must be made in writing. Starkey v. Firstsource Advantage, No. 07–cv–662A(Sr), 2010 WL 2541756 (W.D.N.Y. Mar. 11, 2010). This is consistent with the protections of the FDCPA, and the Court agrees that such revocations must be made in writing. Because the Court finds that consent was given as a matter of law, Plaintiff’s TCPA claims should be DISMISSED.
Cases holding oral revocation sufficient
Adamcik v. Credit Control Services, Inc., 832 F.Supp.2d 744 (W.D. Tex. 2011) (under the TCPA, debtor could orally revoke prior consent to receive autodialer calls to cellular phone, rejecting Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756).
Nevertheless, Plaintiffs argue they revoked their consent to the use of their cellular numbers. Specifically, Mr. Gutierrez asserts he revoked his prior express consent for the use of his cellular number via text message, while Mrs. Gutierrez asserts she orally revoked the consent for the use of her cellular number. Defendant does not dispute that Mr. Gutierrez revoked his prior express consent by virtue of the text message. However, it does dispute whether Mrs. Gutierrez’s oral revocation was valid.
Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal. 2011)
In support of its position that consent must be revoked in writing, Defendant cites two unpublished, out-of-circuit, district court cases, Starkey v. Firstsource Advantage, LLC, No. 07–CV662A(Sr), 2010 WL 2541756 (W.D.N.Y. Mar.11, 2010), and Cunningham v. Credit Management, L.P., No. 3:09–cv–1497–G(BF), 2010 WL 3791104 (N.D.Tex. Aug. 30, 2010). Starkey, however, does not address the issue presented here, namely whether a called party under the TCPA may orally revoke its prior express consent to receive certain automated or pre-recorded calls. Rather, Starkey addressed the separate question of whether written notice is required to cease debt collection calls, particularly under the Fair Debt Collection Practices Act (“FDCPA”). This Court, therefore disagrees with Cunningham’ s reading of Starkey as establishing that “revocation of consent under the TCPA must be made in writing.” 2010 WL 3791104, at *5. The facts of Cunningham are also distinguishable from the facts of this case. In Cunningham, the plaintiff attempted to revoke his prior express consent by telling the defendant that “calls to his cellular phone are inconvenient.” Id. Here, by contrast, Mrs. Gutierrez expressly requested that Defendant remove her cellular number from the account, (Decl. of David C. Leimbach in Supp. of Opp’n to Mot. (“Leimbach Decl.”), Ex. A), and stated that she did not want to receive any more calls on the account on her cellular phone. (Leimbach Decl., Ex. B.) In contrast to the authority cited by Defendant, Plaintiffs argue that the plain language of the TCPA and the 1992 Report and Order of the FCC support their position that consent under the TCPA may be revoked orally. Plaintiffs note the statute lacks any requirement that revocation of consent be in writing, as does the 1992 Report and Order. Plaintiffs also argue that oral consent is sufficient, therefore oral revocation of consent should be sufficient, as well. Although the TCPA does not expressly state whether prior express consent may be oral, the 1992 Report and Order strongly suggests that prior express consent need not be in writing. See 1992 Report and Order ¶¶ 30–31. For instance, the 1992 Report and Order uses a credit application as an example of how a consumer may provide prior express consent for the use of their telephone number. In this case, Mr. Gutierrez filled out the account application on-line, but consumers are also free to apply for credit over the telephone. It seems highly unlikely that a creditor would assert that an on-line applicant gave prior express consent, but the telephone applicant did not. Applying this logic, and absent language in the statute to the contrary, this Court agrees with Plaintiffs that prior express consent may be revoked orally and need not be in writing. Thus, both Plaintiffs revoked their prior express consent to Defendant’s use of their cellular telephone numbers. Accordingly, Defendant is not entitled to summary judgment on Plaintiffs’ claims on the basis of the “prior express consent” exception.
Cases allowing Revocation in Other Contexts under TCPA
Revocation of EBR: In Shupe v. JPMorgan Chase Bank of Arizona, 2012 WL 1344786 (D.Ariz. 2012), Judge Collins held that plaintiffs stated a claim under the TCPA.Judge Collins found that the consumers revoked the “Established Business Relationship” under the TCPA which otherwise permitted auto-dialed calls to their residential telephone number.
The FCC has unequivocally stated that calls made solely for the purpose of debt collection are exempt calls under the TCPA because they either (1) stem from an existing business relationship, or (2) are made for a commercial purpose other than solicitation. In re Rules & Regulations Implementing the TCPA, 23 FCC Rcd. 559, 565 ¶ 5 (Jan. 4, 2008) (citing 1995 TCPA Reconsideration Order, 10 FCC Rcd 12391, 12400 ¶ 17 (July 26, 1995)). As the Recommendation noted, however, Defendant did not establish or argue that its calls were made for this purpose, (Doc. 23 at 10–11). Defendant only established that it had a debtor-creditor relationship with Plaintiff. (Id.; Doc. 4 at 7–13). Therefore, Defendant cannot claim this exemption for its calls at this stage in the proceedings. 2. Established Business Relationship Except where the calls are placed solely for debt collection purposes, an established business relation-ship may be terminated by the receiver by informing the caller to place the receiver on a do-not-call list. 47 C.F.R. § 64.1200(f)(4)(i). Termination of the established business relationship refers only to termination of the privilege to call based on the exemption and does not require a termination of all business between the parties. (Id.). Plaintiffs allege they had a business relationship with Defendant but terminated the relationship in August 2010. (Doc. 1–3). Plaintiffs further allege that the calls began after they wrote to Defendant to terminate the relationship. (Id.). Defendant argues, however, that Plaintiffs could not terminate the relationship unilaterally because (1) “as a matter of law and reason, the business relationship lasts as long as the promissory note and deed of trust were executory” and (2) unilateral termination by Plaintiffs would create an irreconcilable conflict with A.R.S. § 33–807.01. (Doc. 25 at 2–3). As to Defendant’s first argument, an established business relationship is a term of art under the TCPA and so is its termination. The regulations make clear that termination of an established business relationship is not equivalent to termination of the entire relationship between a caller and a receiver. It simply means the caller’s business relationship with the recipient no longer entitles it to initiate solicitation phone calls to the recipient using an artificial or prerecorded voice. As to Defendant’s second argument, A.R.S. § 33–807.01 requires a mortgage lender to contact in writing a borrower who occupies the subject property as his principal residence at least thirty days before notice of a trustee’s sale is given in order to explore options to avoid foreclosure. Clearly, a statute requiring an attempt to contact a borrower in writing is not inconsistent with the borrower’s right to terminate the established business relationship within the meaning of the TCPA. Plaintiffs sufficiently alleged they terminated their established business relationship with Defendant in accordance with 47 C.F.R. § 64.1200(f)(i). There-fore, for the purposes of this Motion to Dismiss, Defendants cannot claim the established business relationship exemption.
Revocation of Consent in Advertising/Text Context: On November 29, 2012, the FCC issued a Declaratory Ruling that sending a one-time confirmatory text message within five minutes of receipt of a consumer’s request that no further text messages be sent does not violate the TCPA or the FCC’s rules as long as the sender had prior express consent to send text messages using an automatic telephone dialing system. The FCC held (1). The FCC’s definition of an “ATDS” under the TCPA is reiterated, as held in its 2003 TCPA Order – “this definition covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists”. (2). The TCPA and its legislative history do not address revocation of consent. So, the FCC claimed the authority to fill in the gap holding that an opt-out confirmation text message is part of the opt-out process. (3). That confirmation-text class-action lawsuits threatened business and served only the interests of trial lawyers. Ryabyshchuk v. Citibank (South Dakota) N.A., 2011 WL 5976239 (S.D.Cal. 2011) (“Moreover, Ryabyshchuk alleges that whatever consent might have existed initially, he effectively revoked it by replying “STOP” to Citibank’s first message. ( Id. ¶¶ 12, 15.) Accepting these facts as true, the FAC “state[s] a claim to relief that is plausible on its face’ “ because it plausibly alleges that the two text messages from Citibank were received without Ryabyshchuk’s prior express consent.”).