TCPA Summary Judgment Scope Defined
In Gutierrez v. Barclays Group (S.D. Cal. Feb. 9, 2011), a district court considered the scope of revoking consent to contact debtors by cell phone and text messages.
In Gutierrez, plaintiff applied for a credit card from defendant Barclays. On his application, plaintiff listed both his and his wife’s cellular phone numbers in his contact information. Plaintiff’s application was approved. Months later, plaintiff’s account became delinquent, and defendant began making collection calls and sending text messages to the two cellular numbers associated with plaintiff’s account. Plaintiff requested, via text message, that defendant stop sending text messages to his cellular phone. Plaintiff’s wife also orally requested that defendant stop calling her cellular phone.
Plaintiff and his wife subsequently filed suit, alleging violation of the Telephone Consumer Protection Act (TCPA), which prohibits making telephone calls using an automatic telephone dialing system or an artificial or prerecorded voice, subject to exemption where the called party has given prior express consent. Among other things, the TCPA also prohibits making calls 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.”
Defendant raised three arguments in its motion for summary judgment. The court denied defendant’s motion on all three grounds. First, defendant asserted that, in listing the two cellular numbers on his credit card application, plaintiff gave “prior express consent” and so the TCPA exemption applied. The court found that although plaintiff had given prior express consent to call both cellular numbers, this consent was subsequently revoked and the exemption did not apply. There was no dispute as to the validity of the revocation, via text message, of consent to call plaintiff’s cellular number; the parties did dispute the validity of the oral revocation of consent to call plaintiff's wife's number. The court agreed with plaintiffs that prior express consent may be revoked orally and therefore, both plaintiffs had revoked their prior express consent, and the TCPA exemption did not apply.
Second, defendant contended that plaintiff’s wife was not a “called party” under the TCPA, because she was not the intended recipient of the call, and therefore lacks standing to sue. The court adopted the position that the TCPA was intended to protect telephone subscribers, and therefore subscribers, including plaintiff’s wife, have standing to sue for TCPA violations.
Third, defendant argued that because plaintiff was not charged for the calls or text messages, there could be no violation of the TCPA. The court interpreted the statute differently, holding that incurring charges for received calls is not a requisite element of a TCPA claim.
Editor's note: This article was co-written by Priscilla Taylor, a summer law clerk in the Firm's San Francisco office.
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