Eastern District of Illinois Holds That Provision of Cell Phone Number is Insufficient to Constitute Prior Express Consent

Thrasher-Lyon v. CCS Commercial, LLC, No. 11 C 04472, 2012 WL 3835089 (E.D. Ill. Sept. 4, 2012) Pending before the Court was the question of whether "prior express consent" under Section 227(b)(1)(A) of the TCPA means consent to be contacted in general, or consent to be contacted via "robo-calls." By way of background, Plaintiff, who was involved in a car accident, gave her cell phone number to the driver whose car she hit. The driver's insurer called Plaintiff for information about the accident. During the call, the agent asked Plaintiff for the best way to reach her. She said the number the agent called was best. Plaintiff did not disclose that the number was a cell phone number. After further investigation, the insurer sought subrogation from Plaintiff, and eventually referred the claim to a collector, who "robo-called" Plaintiff's cell phone. The only disagreement between the parties when they both moved for summary judgment was as to the definition of "prior express consent" under Section 227(b)(1)(A). Defendant argued that Section 227(b)(1)(A) requires only consent to be called in general. Plaintiff, however, argued that Section 227(b)(1)(A) requires express consent to receive robo-calls on one's cell phone. Granting partial summary judgment in Plaintiff's favor, the court stated that Section 227(b)(1)(A) unambiguously requires express consent to be robo-called by a party, not merely consent to be called by a party in general. In reaching this conclusion, the court rejected Defendants' argument that such a reading of the TCPA conflicts with the FCC's 2008 ruling stating that "the provision of a cell phone number to a creditor, e.g., 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." According to the court, the FCC ruling created a "carve-out" specifically for the debtor-creditor relationship, permitting an inference that a debtor consents to be robo-called on her cell phone about a debt when she provides her cell phone number to a creditor. According to the court, this carve-out applies only to voluntary debtor-creditor relationships. As such, the carve-out did not apply in the context of this case because, even if a debtor-creditor relationship existed, it was not voluntary, as Plaintiff "sought no relationship with either [insurer or collector]. She did not give up her phone privacy in exchange for a benefit such as a loan." Rather, unlike a debtor who reveals her cell phone number on a credit application, Plaintiff "would have had no reason to believe that debt collection would be an outgrowth" of providing her cell phone number at the accident scene or verifying it with the insurer. The court also noted that the existence of a debtor-creditor relationship was questionable, as the insurer never reduced its purported subrogation claim to judgment. 

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