Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Questions of fact remain on whether consumer consented to 259 prerecorded cellular telephone messages, (Jun 10, 2014)

By Greg Hammond, J.D.

A consumer’s Telephone Consumer Protection Act (TCPA) claims against a legal support company could not be determined on a summary judgment, according to the federal district court in Fort Myers, Florida, because questions of fact remained regarding whether the consumer consented to receiving 259 prerecorded messages on her cellular telephone and whether she revoked such consent prior to additional attempts to call her (Gray v Morgan Drexen, Inc., June 9, 2014, Steele, J).

Background. Morgan Drexen, Inc. is a legal support company that receives telephone calls responding to legal service advertisements. In August 2010, Jody Gray called Morgan Drexen in response to an advertisement for debt consolidation services. Following her initial call, Morgan Drexen contacted Gray’s cellular phone, using an automatic telephone dialing system, and left her a prerecorded message 259 times. Gray filed a one-count complaint, alleging that Morgan Drexen violated the TCPA. She subsequently filed a motion for partial summary judgment.

TCPA violation. According to the court, the only issues it needed to determine were: (1) whether Gray consented to Morgan Drexen’s calls and (2) if so, whether she revoked her consent before Morgan Drexen stopped calling. The FCC previously issued an order clarifying that providing a number “at which the called party wishes to be reached” constitutes required consent under the TCPA. Because Gray provided Morgan Drexen with her cellular telephone number, she failed to show that no material issue of fact existed with regard to whether she provided express consent to be contacted by the company.

Gray also alleged that, even if she did consent to Morgan Drexen’s calls, she revoked that consent on at least three occasions. However, the Eleventh Circuit previously determined that a disagreement regarding whether and when consent was orally revoked is the type of factual dispute that cannot be properly resolved on summary judgment. Morgan Drexen argued that Gray did not make any revocation of her consent to its telephone calls. Thus, the court concluded that summary judgment was inappropriate, since material issues of fact remained on whether Gray revoked any consent she may have given. Consequently, Gray’s motion for partial summary judgment was denied.

The case is No. 2:13-cv-83-FtM-29DNF.

Attorneys: Michael J. Vitoria (Morgan & Morgan, PA) for Jody Gray. Aaron S. Weiss (Carlton Fields Jorden Burt, PA) for Morgan Drexen, Inc.

Companies: Morgan Drexen, Inc.

Cases: ConsumerProtection Privacy FloridaNews