A federal district court in the Western District of New York recently denied in part a motion for summary judgment in a case alleging violations of the Telephone Consumer Protection Act (TCPA) based on collection calls and prerecorded voice messages. Specifically, the court found the defendant had not provided sufficient evidence that the plaintiff provided his phone number in connection with the debt as issue.
In Foster v. National Recovery Agency (NRA), the plaintiff incurred a medical debt related to injuries sustained in a car accident. That debt was placed with NRA for collection. As part of its collection effort, NRA allegedly called the plaintiff a total of 73 times and left several prerecorded voice messages on his cell phone. The plaintiff filed suit alleging NRA violated the TCPA by calling his cell phone without permission: 1) using an automated telephone dialing system (ATDS); and 2) using a prerecorded voice. Both parties moved for summary judgment on the TCPA claims.
After moving for summary judgment, the plaintiff conceded his ATDS claim was no longer viable following the Supreme Court’s ruling in Facebook v. Duguid, discussed here, which narrowly interpreted the definition of an ATDS, the use of which triggers prior express consent requirements under the TCPA. As for his second claim, the plaintiff alleged that NRA left 46 prerecorded messages on his voicemail, which requires prior express consent even if an ATDS is not used. While there were facts in dispute regarding how many, if any, prerecorded messages were left, NRA moved for summary judgment, claiming that the plaintiff had expressly consented to receiving calls — prerecorded or not. The court noted that applicable case law holds that providing one’s phone number to an entity constitutes consent for that entity to use the number to collect a debt, so long as the “number was provided during the transaction that resulted in the debt [being] owed.”
Under the TCPA, consent is an affirmative defense, and the burden was thus on NRA to demonstrate that the plaintiff consented to receive the calls. The court found that NRA failed to carry its burden, taking a context-driven, fact-intensive approach to prior express consent. The plaintiff claimed he did not remember giving his number to the hospital. While NRA submitted the plaintiff’s intake form, which included the plaintiff’s number along with his address, social security number, and insurance information, the court found there was nothing to indicate the form was filled out by or included only information provided by the plaintiff. “In other words, this document merely demonstrates that whenever the document was typed [the hospital] had [the plaintiff’s] phone number from some source.” While noting that NRA may very well prevail at trial, the court denied NRA’s motion for summary judgment, holding “mere possession of a plaintiff’s phone number fails to establish the affirmative defense of consent at the summary judgment stage.”