Antitrust Law Daily Wrap Up, PRIVACY—D. Colo.: Consumer expressly consented to be contacted by debt collector and could not withdraw that consent, (Aug 7, 2013)

By Peter Reap, J.D., LL.M.

Charlene Chavez, a consumer of medical services from Parkview Medical Center expressly consented to be contacted through her cellular telephone number by a debt collector, The Advantage Group (“TAG”), that Parkview assigned the debt to for collection because she provided her cellular number to Parkview, the federal district court in Denver has decided (Chavez v. The Advantage Group, August 5, 2013, Blackburn, R.). Furthermore, Chavez could not effectively withdraw that consent. Thus, Chavez’ claims against TAG under the Telephone Consumer Protection Act of 1991 (TCPA) were dismissed with prejudice.

The TCPA provides, in relevant part, that:

[i]t shall be unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice –

to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]

47 U.S.C. § 227(b)(1)(A)(iii). Chavez alleges that TAG used an automatic telephone dialing system (“ATDS”) to contact her cell number without her prior express consent. Even assuming that TAG’s dialing system constitutes an ATDS within the purview of the TCPA, Chavez expressly consented to be contacted by TAG, the court ruled.

The Federal Communications Commission (FCC) declared in a 2008 Ruling that “autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt . . . are permissible,” the court explained. Chavez argued that, contrary to the 2008 FCC Ruling, that she did not expressly consent, relying on the district court’s decision in Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 1899616 (S.D. Fla. May 8, 2013), cert. granted (June 10, 2013). The court was not persuaded.

The Mais court is the only federal district court to conclude that the district courts have jurisdiction to review FCC Rulings. The analysis on which this conclusion depended was legally insupportable and the court refused Chavez’ invitation to adopt it.

Congress vested in the federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of all final orders of the Federal Communications Commission made reviewable by section 402(a) of Title 47.” 28 U.S.C. § 2342(1). Concomitantly, and somewhat tautologically, section 402(a) provides that “[a]ny proceeding to enjoin, set aside, annul, or suspend any order of the Commission . . . shall be brought as provided by and in the manner prescribed” by 28 U.S.C. § 2342. 47 U.S.C. § 402(a). The Mais court went to great, indeed, one might say extreme, lengths to narrowly define this jurisdictional provision, the court commented. The Mais court stated, with little more than its own ipse dixit as support, that a proceeding under the TCPA was not an action to “enjoin, set aside, annul, or suspend” an order of the Commission. This court refused to engage in the semantical machinations which allowed the Mais court to bypass the jurisdictional boundary established by Congress.

Chavez argued further that she revoked her consent by orally telling defendant on several occasions not to continue calling her. Several courts have considered this issue, arriving at varying conclusions regarding whether oral revocation is sufficient under the TCPA, the court observed.

The stricter statutory interpretation was more persuasive, as articulated most eloquently by the district court in Saunders v. Nco Financial Systems, Inc., 910 F.Supp.2d 464, 468-69 (E.D.N.Y. 2012). In Saunders, the court held that a consumer could not effectively withdraw a voluntarily given prior express consent to call a cell phone number. That view was persuasive, the court determined.

The case is Civil Action No. 12-cv-02819-REB-MEH.

Attorneys: Kimberly Ann Lucas (Kyle Mathis & Lucas, LLP) for Charlene Chavez. Thomas C. Volkmann (Spiecker, Hanlon, Gormley & Volkmann, LLP) for The Advantage Group.

Companies: The Advantage Group.

Cases: ConsumerProtection Privacy ColoradoNews