Sunday, February 22, 2015

District Court Grants Summary Judgment in Favor of Collection Agency on TCPA Claim

The Southern District of Florida granted summary judgment in favor of a collection agency regarding plaintiff’s TCPA claims.  In Jones v. Stellar Recovery, Inc., C.A. No. 1:14-cv-21056-KMM (S.D. Fl. Feb. 20, 2015), the consumer alleged that the collection agency violated the TCPA by making at least forty six (46) calls to his cell phone and leaving automated messages in an effort to collect a Comcast account. The Southern District of Florida determined that prior express consent existed where the consumer provided his cell phone number to the original creditor on a prior account and granted summary judgment in favor of the collection agency. 

In September 2012, Jones opened an account with Comcast which he subsequently closed when he moved.  In opening that account (Account 1), Jones provided his cell phone number to Comcast.  After moving, Jones opened a second account with Comcast (Account 2) which he eventually defaulted on.  It was with regard to Account 2, that Stellar Recovery (“Stellar”) made collection calls.

Stellar moved for summary judgment, arguing that the prior express consent exception to the TCPA precluded liability.  The issue before the court was whether plaintiff consented to debt collection calls regarding Account 2 by giving Comcast his cellphone number when opening Account 1 which never became delinquent.  The court noted that there were no cases on point and that the FCC rulings interpreting 47 U.S.C. §227 were written under the assumption that an individual only had one account with a given creditor.  “It is clear that the 2008 FCC Declaratory Order fails to contemplate the facts of this case, where a plaintiff gave his number when opening one account with a creditor, but then received debt collection calls regarding a second account with the same creditor.”  The court determined, however, that the 2008 FCC Declaratory Order’s rationale offered guidance:

The FCC stated that the prior express consent exceptions allows debt-collectors to calls individuals’ cellphones because “persons who knowingly release their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”

See FCC Declaratory Order at 560, 564.  Therefore, there is an exception when the called party has provided the telephone number…for use in normal business communications.”  Id. 

The court therefore determined that the FCC’s focus is on whether a consumer has consented to phone calls to a particular number for a particular creditor.  When Jones gave his cellphone number to Comcast while opening Account 1, therefore, he gave Comcast permission to call that number for normal business communications, absent instructions to the contrary.  “Normal business communications” included communications from Comcast concerning Account 2, as well.  “In sum, because Plaintiff knowingly gave Comcast his cellphone number, he gave Comcast (and thereby defendant) permission to call him at that number for normal business communications.”  Plaintiff, therefore, consented to debt-collection calls regarding Comcast Account 2 when he provided his cellphone number while opening Comcast Account 1 and never expressed instructions to the contrary.


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