Prior Express Consent Under the TCPA and Transactions that Resulted in Debt

More guidance has been provided on how courts define “express consent” under the Telephone Consumer Protection Act (TCPA) with regards to debt collection. In the case Sharp v. Allied Interstate Inc., a federal district court in New York relied on earlier Federal Communications Commission (FCC) rulings that found that consumers had given their prior express consent in situations where they had given their respective contact telephone numbers to creditors in transactions that resulted in debts.

In Sharp v. Allied Interstate Inc., a consumer who had ordered a “bundled” package of services offered by Verizon was receiving TCPA debt collection calls. The bundled services included telephone services provided by Verizon and television services provided by DirecTV. Two years after ordering, the plaintiff canceled the bundled package subscription. However, DirecTV believed that the plaintiff still owed $86.96 and retained the services of the defendant, a debt collection agency. During a five month period in 2011, the defendant placed 381 automated telephone calls to the cell phone of the plaintiff, trying to collect the debt. While the parties agreed that the plaintiff provided his cell phone number to Verizon, there was no conclusive proof as to where the debt collector obtained the plaintiff’s cell phone number.

The FCC has ruled that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” Therefore it is not a violation of the TCPA to call a number that has been “provide as one at which the called party wishes to be reached.” With regards to debt collection calls, the FCC had decided that “autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party.” Additionally, it was emphasized by the FCC that “prior express consent is deemed to be granted only if the wireless number was provided during the transaction that resulted in the debt owed.” It is the creditor’s burden to establish that the necessary consent has been obtained.

In this case, the federal district court found that the debt collector had not obtained prior express consent to make the calls that it did and the court denied the defendant’s motion for summary judgement. It was argued by the defendant that since it does not seek out phone numbers independently, that the plaintiff must have provided the phone number himself or Verizon provided it. The defendant believed that this was enough to meet the burden of proving express consent.

However, this argument was rejected by the court. The court noted that the burden is on the defendant to prove express consent not the plaintiff. It was suggested by the court that the defendant could have made the argument that by providing prior express consent to Verizon the plaintiff also provided consent to DirecTV. However, this argument was never introduced by the defendant.

It was also noted by the court that the prior to ordering the bundled package, the plaintiff was already a Verizon telephone service customer. Therefore, the plaintiff may have provided his contact information to Verizon prior to the “the transaction that resulted in the debt owed.” The court denied the defendant’s motion for summary judgment.

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.

We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 or visit our website at http://www.krohnandmoss.com/.