The US District Court for the Northern District of Illinois recently granted summary judgment to a plaintiff in a putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, on the question of whether she provided express consent to receive calls from an automatic telephone dialing system, denying the defendant’s attempt to end the suit. The decision, Thrasher-Lyon v. CCS Commercial, LLC, No. 11-cv-4473, 2012 WL 3835089 (N.D. Ill. Sept. 4, 2012), adds to the growing body of law addressing what constitutes “prior express consent” under the TCPA.

Absent certain exceptions, the TCPA prohibits the use of an “automatic telephone dialing system” to place a call to a mobile phone. See 47 U.S.C. § 227(b)(1)(A)(iii). One of those exceptions, the one at issue in Thrasher-Lyon, permits such calls if they are “made with the prior express consent of the called party.” Id. The Federal Communications Commission has clarified that providing “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.” In re Rules & Regulations Implementing the TCPA of 1991, 23 F.C.C. Rcd. 559 (2008).

According to the complaint, Thrasher-Lyon crashed into Charles Ferguson’s car while riding her bike. At the scene, Thrasher-Lyon provided her mobile phone number to Ferguson and the police officer who arrived to investigate. Ferguson filed a claim with his insurer, who contacted Thrasher-Lyon at the number she provided. During that conversation, she confirmed that the number was the best (and only) way to reach her. The insurer ultimately paid Ferguson’s claim and then sent a letter to Thrasher-Lyon seeking subrogation. When Thrasher-Lyon did not respond, the insurer referred the claim to CCS Commercial for collection. CCS Commercial called Thrasher-Lyon’s mobile phone using an automatic telephone dialing system, and Thrasher-Lyon brought suit under the TCPA, seeking to represent a class of all individuals whom CCS Commercial called on their mobile phones using an automatic telephone dialing system without prior express consent.

After some discovery, both parties moved for summary judgment on the question of whether Thrasher-Lyon had provided prior express consent to receive the calls from CCS Commercial. The district court granted Thrasher-Lyon’s motion and denied CCS Commercial’s motion. The court concluded that because Thrasher-Lyon did not expressly consent to receive autodialed calls, the TCPA’s exception was not triggered. To reach this conclusion, the court noted that the statutory prohibition was focused only on autodialed calls, and therefore any express consent needed to be similarly focused on such calls. Id. at *2. According to the court, mere consent to be called generally was insufficient. This, the court reasoned, was also consistent with the legislative history of the TCPA, which referred to autodialed calls as a “nuisance” and an “invasion of privacy.” Id. at *3. Finally, the court rejected CCS Commercial’s reliance on the FCC’s 2008 TCPA Order, concluding that Thrasher-Lyon had not provided her phone number in connection with a transaction, and that her relationship with CCS Commercial was not one of creditor-debtor, as the insured had never reduced its subrogation claim to judgment. Id. at *3-*5.

CCS Commercial has filed a motion for reconsideration, arguing that the FCC’s 2008 Order was merely a specific application of the Commission’s broader statement in 1992 that “any telephone subscriber who releases his or her telephone number has, in effect, given prior express consent to be called by the entity to which the number was released.” In re Rules & Regulations Implementing the TCPA of 1991, 7 F.C.C. Rcd. 8752 (1992). Thus, CCS Commercial argues, it does not matter whether Thrasher-Lyon’s actions qualified under the 2008 TCPA Order, as the broader 1992 Order is sufficient to decide the question of her consent. The motion for reconsideration remains pending.

Class action lawsuits under the TCPA have increased exponentially in recent years, with plaintiffs frequently seeking damages of millions of dollars under the statutory damages provision of the TCPA. See 47 U.S.C. § 227(b)(3) (providing statutory damages of up to $1500 per call). As a result, the meaning of “prior express consent” is increasingly important for companies that use automated technology to reach consumers. Indeed, the FCC is currently considering a petition for declaratory ruling addressing additional questions of when consent has been given. See GroupMe, Inc., Petition for Declaratory Ruling, FCC CG Docket No. 02-278 (filed Mar. 1, 2012).
The Thrasher-Lyon decision is difficult to square with the TCPA. The statute restricts calls made using an automatic telephone dialing system absent prior express consent. But the TCPA does not differentiate between consent for manually dialed calls and consent for automated calls. Moreover, because the statute does not apply to manually dialed calls, prior express consent is unnecessary for such calls, and, as a result, the requirement for consent can only be read to apply to automated calls. Companies that use automated dialing technology should continue to watch as additional courts address this and related questions under the TCPA to determine whether the Thrasher-Lyon court’s view is adopted in other jurisdictions.

For inquiries related to this alert, please contact Howard Waltzman or Joseph Minta.

To learn more about Mayer Brown’s Privacy & Security practice in the United States, please contact Rebecca Eisner, John Mancini or Jeffrey Taft. To learn more about our Consumer Litigation & Class Actions practice in the United States, please contact Lucia Nale, John Nadolenco or Archis Parasharami.