CEB Prac. Guide § 2B.03: Calls to Cell Phones -- "Making" a Call

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. Applying the regulations promulgated by the FCC, Betancourt unequivocally provided her express consent that State Farm could call 8626… Read More

Previously, we reported on the Soppett v. Enhanced Recovery Appeal before the Court of Appeals for the Seventh Circuit.  The Court issued its decision today. In Soppett v. Enhanced Recover Company, LLC, here, the Court of Appeals for the Seventh Circuit held that ‘consent’ under the TCPA to call cellular telephones by autodialer means consent from the person subscribing to… Read More

In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More

The FCC today issued its Final Telemarketing Sales Rule today.  As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer: Moreover, while we revise our consent rules to require prior written consent… Read More

In Cavero v. Franklin Collection Service, Inc. , 2012 WL 279448 (S.D.Fla. 2012), Judge Altonaga granted summary judgment to a debt collector on a TCPA claim arising out of calls to a cellular telephone by means of an autodialer.    To demonstrate a violation of the TCPA, Cavero must show Franklin called his cell phone, without his “prior express consent,” using… 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

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 Griffith v. Consumer Portfolio Serv., Inc., 2011 WL 3609012 (N.D.Ill. 2011), Judge Grady denied an automobile finance company’s motion for summary judgment on the sole issue of whether it’s dialing system was an ADAD within the meaning of the TCPA.  The finance company’s system was described as follows:   The named plaintiffs in this case, Roslyn Griffith and Jerret… Read More

In D.G. ex rel. Tang v. William W. Siegel & Associates, Attorneys at Law, LLC, --- F.Supp.2d ----, 2011 WL 2356390 (N.D.Ill. 2011), Judge Kocoras rejected defendant’s claim that Plaintiff lacked TCPA standing.  Plaintiff Tang was the regular user and carrier of a cellular phone with an assigned number of XXX–XXX–3757. From August 5, 2010, to December 14, 2010, Siegel… Read More

In Bentley v. Bank of America, N.A., --- F.Supp.2d ----, 2011 WL 1097452 (S.D.Fla. 2011), Judge Dimitrouleas held that a Plaintiff might be able to state a claims under the TCPA where calls were placed to the Plaintiff’s cell phone, as opposed to the Plaintiff’s land-line.  Judge Dimitrouleas found that the ‘established business relationship’ exception to the TCPA prohibition against… 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

In Vance v. Bureau of Collection Recovery LLC, 2011 WL 881550 (N.D.Ill. 2011), Judge Dow found that Plaintiff had pleaded enough facts to proceed on a TCPA claim arising out of debt collection calls to his cellular telephone. The facts recited in the opinion were scarce, but, basically, it appears that the Plaintiff alleged that she received multiple automated debt… Read More