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CEB Prac. Guide § 2B.15: Prior Express Consent

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The FCC announced its intention to address TCPA regulations at its open meeting scheduled for February 15, 2012. The Commission will consider a Report and Order that protects consumers from unwanted autodialed or prerecorded calls (“robocalls”) by adopting rules that ensure consumers have given prior express consent before receiving robocalls, can easily opt out of further robocalls, and will experience “abandoned” telemarketing calls only… Read More

In Silbaugh v. Viking Magazine Services, 2012 WL 76889 (N.D.Ohio 2012), the District Court certified a class under the TCPA related to text-messages sent to cellular telephones.  The facts were as follows.  Plaintiff Andao Silbaugh sued Viking Magazine Services under the TCPA, which prohibits the making of a phone call to a cellular telephone using an automatic telephone dialing system… Read More

The Subcommittee on Communications and Technology held a hearing on Friday, November 4, 2011, at 9:00 a.m. in 2123 Rayburn House Office Building on “H.R. 3035, The Mobile Informational Call Act of 2011.”  The link below includes a video of the testimony, a Background Memo and an Opening statement from Communications and Technology Subcommittee Chairman Greg Walden.   http://energycommerce.house.gov/hearings/hearingdetail.aspx?NewsID=9065 Read More

In Moore v. Firstsource Advantage, LLC,  2011 WL 4345703 (W.D.N.Y 2011), Judge Skretny held that triable issues of fact on consent and revocation of same prevented granting of summary judgment arising out of calls containing a prerecorded message made to a consumer’s cellular telephone.  As to the issue of consent, Judge Skretny held that consent can be given at any… Read More

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.… Read More

In Zehala v. American Exp., 2011 WL 4484297 (S.D.Ohio 2011), Judge Watson distinguished between ADAD calls to land lines versus cellular telephones, finding that Plaintiff failed to state a claim as to the former but had properly pleaded a claim as to the latter.    As to land lines, Judge Watson found no claim because an established business relationship existed:… Read More

In Grant v. Capital Management Services, L.P., 2011 WL 3874877 (9th Cir. 2011), the Court of Appeals held that the District Court erred in the quantum of proof it required the Defendant to demonstrate in removing a TCPA case under CAFA.    Because neither the size of the proposed class nor the total amount in controversy was apparent from the… Read More

In Martin v. Bureau of Collection Recovery,  2011 WL 2311869 (N.D.Ill. 2011), Judge St. Eve ordered discovery against a debt collector on it’s ‘consent’ defense under the TCPA, rejected the argument that evidence of consent was in the possession of the debt-collector’s clients or other third parties.  Judge St. Eve explained:    The TCPA prohibits making “any call (other than… Read More

In Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal. 2011), Judge Sabraw held that a consumer survived summary judgment on the consumer’s TCPA claim.  Judge Sabraw held that any consent given by the consumer to be called on the consumer’s cellular telephone could, and was, revoked.  Judge Sabraw also held that the consumer need not prove that he/she was charged… Read More

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