Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Fact issues preclude summary judgment in cell phone user’s TCPA claim against debt collector, (Dec 19, 2014)

By Linda O’Brien, J.D., LL.M.

The federal district court in Tampa, Florida has denied a consumer’s motion for summary judgment on her Telephone Consumer Protection Act (TCPA) claims against a debt collection company for calling the cellular telephone that the consumer provided to a dentist at time of treatment in its attempt to collect an unpaid bill owed to the dentist (Walker v. Transworld Systems, Inc., December 17, 2014, Moody, J.).

In September 2009, Nevada Walker visited the dental office of Forster, Davis, Roberts, and Boeller (FDR&B) for treatment. During the visit, she completed a patient information form in which she provided her cellular telephone number to FDR&B. The form also contained a dental insurance section in which Walker indicated that she was responsible for the account but did not provide any information regarding dental insurance coverage. After receiving treatment, Walker failed to provide payment. In 2011, her account was placed with Transworld Systems (TSI) for collection. From January 2011 to November 2011, TSI called Walker’s cellular telephone number attempting to collect the debt. Walker sued TSI, alleging that TSI called her cellular telephone using an automatic telephone dialing system in violation of the TCPA. TSI moved to dismiss.

Express consent. In order to prevail on a TCPA claim, a plaintiff must show that the defendant make a call using an automatic telephone dialing system, the call was no made for emergency purposes, the call was made without prior express consent, and the call was made to the plaintiff’s cellular telephone, the court explained. The Federal Communications Commission (FCC), in prescribing regulations implement the Act, clarified the term in a 2008 ruling to mean “the provision of a cell phone number to a creditor as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” In the ruling, the FCC noted that “calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.”

The plaintiff did not present evidence that she provided “instructions to the contrary” – that she did not give permission to be called at her cell phone provided to FDR&B, according to the court. In rejecting Walker’s argument that her provision of her cell phone number was not “express consent” under the TCPA, the court noted that her contention was inconsistent with the 2008 FCC ruling and insufficient to overcome material fact issues regarding her consent at the time of treatment. In light of evidence establishing that she provided her cell phone number to FDR&B on the date she received treatment, material issues of fact exist regarding Walker’s consent to be contacted by TSI.

Revocation of consent. Walker also contended that she instructed the defendant to stop calling her cell phone. Since both the plaintiff and defendant presented conflicting evidence regarding Walker’s alleged request that TSI cease its calls to her cellular telephone, material issues of fact regarding her revocation of consent precluded summary judgment, the court concluded.

The case is No. 8:14-cv-588-T-30MAP.

Attorneys: William John Gadd (W. John Gadd, Attorney at Law) for Nevada Walker. Abigail S. Pressler (Sessions, Fishman, Nathan & Israel, LLC) for Transworld Systems, Inc.

Companies: Transworld Systems, Inc.

Cases: Privacy FloridaNews