Burr & Forman

05.4.2018   |   Blog Articles, Consumer Finance Litigation, TCPA

Northern District of Ohio Follows Second Circuit’s Reyes Decision

In Barton v. Credit One Financial d/b/a Credit One Bank, No. 16CV2652, 2018 WL 2012876, (N.D. Ohio April 30, 2018), the Northern District of Ohio followed the Second Circuit’s decision in Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), and held that a plaintiff who consented to receiving telephone calls as part of a credit card application could not unilaterally revoke that consent.

The plaintiff, Carlton Barton, Jr. (“Plaintiff”), filed a lawsuit claiming that Credit One Financial d/b/a Credit One Bank (“Credit One”) violated the Telephone Consumer Protection Act (“TCPA”) by calling his cell phone number in regards to an outstanding balance on Plaintiff’s Credit One credit card even though Plaintiff had not provided prior express consent and orally revoked consent.

The TCPA prohibits the use of automatic telephone dialing systems or artificial prerecorded voices on calls made to cell phone numbers unless the called party has provided “prior express consent.” 47 U.S.C. § 227(b)(1)(A)(iii). The Court noted that “prior express consent” is not defined by the TCPA and turned to the Federal Communications Commission’s (“FCC”) interpretation of “prior express consent.” Barton, 2018 WL 2012876, at *3. The FCC has determined that “‘persons who knowingly release their phone numbers have in effect given their invitation or permission to be called . . . absent instructions to the contrary.'” Id. (quoting In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752 (1992)). As the Court noted, the FCC also applies this interpretation of prior express consent to wireless telephones. See id. (citing In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559 (2008)).

In the instant case, Plaintiff completed an online application to open a Credit One credit card and, as part of the application, “provided his cell phone number as his primary and only contact number.” Id. at *1. Plaintiff also consented to the terms of a Cardholder Agreement that included a provision giving Credit One permission to contact Plaintiff at any number provided, including cell phone numbers. Specifically, the consent provision stated “‘[y]ou are providing express written permission authorizing Credit One Bank or its agents to contact you at any phone number (including mobile cellular/wireless, or similar devises) . . . you provide at any time, for any lawful purpose. The ways in which we may contact you include live operator, automatic telephone dialing systems (auto-dialer), prerecorded message, text message, or email.'” Id. (quoting the Cardholder Agreement).

Plaintiff argued that even though he provided his cell phone number in the online application, “he did not give ‘more than implied consent’ for Credit One or its agents to call his cell phone.” Id. at *3. The Court, however, found that specific consent to automated calls is not required. Id. Instead, the “prior express consent” requirement is met when a person gives an invitation or permission to be called at a certain number. Id. The Court further determined that “the terms of the Cardholder Agreement ma[d]e it clear that [Plaintiff], by knowingly and voluntarily providing his cell phone number as part of the application, provided his prior express consent to be contacted.” Id. Thus, the Court concluded that by providing his cell phone number in the application and using the card, Plaintiff provided the requisite prior express consent.

Plaintiff also argued that he revoked consent to be called when he verbally instructed Credit One to stop calling him sometime in July 2016. See id. at *2. However, the Court found that Plaintiff’s purported oral revocation was insufficient. The Court noted that the Cardholder Agreement included a provision outlining how consent to communications could be revoked. The Cardholder Agreement stated “[i]f you do not want to receive communication as described [herein], you must (i) provide us with written notice revoking your prior consent, (ii) in that written notice, you must include your name, mailing address, and the last four digits of your account number . . . (iv) if you are requesting communications to cease via telephone(s) . . . please provide the specific phone number(s) . . . .” Id. at *3 (quoting the Cardholder Agreement). The Court found that the revocation clause was “valid and enforceable, and [Plaintiff] cannot unilaterally alter the terms of the agreement to claim that his oral revocation of consent was valid.” Id. at *4. Because Plaintiff’s purported oral revocation of consent did not comply with the steps set forth in the Cardholder Agreement, the Court determined it was not enough to revoke his prior consent to be called. The Court explained that “the TCPA ‘does not permit a consumer who agrees to be contacted by telephone as part of a bargained-for transaction to unilaterally revoke that consent.'” Id. (quoting Reyes, 861 F.3d at 56).

The Court further observed that once Credit One received written notice from Plaintiff’s counsel that complied with the terms of the Cardholder Agreement’s revocation provision, Credit One flagged the account and ceased all calls to Plaintiff. Thus, the Court concluded that the TCPA was not violated by any calls Credit One placed to Plaintiff’s number prior to the written revocation of consent and granted Credit One’s Motion for Summary Judgment.

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