Express Consent under the TCPA Extends from the Creditor to its Collectors

A United States District Court judge in the Northern District of California recently granted a motion for summary judgment in favor of a debt collector on a TCPA claim where the consumer had provided a cell phone number as part of an in-store application for a store credit card.  In Schwartz-Earp v. Advanced Call Center Technologies, LLC (Case No. 15-cv-01582), the judge determined that when the consumer provided her telephone number at the time she applied for the store credit card, which gave rise to the underlying debt, she consented to being contacted at that number by the credit card issuer and collection companies acting on its behalf. The Plaintiff had applied in-store for a JC Penney-branded credit card, and she provided her telephone number as part of the application process.  Plaintiff did not specify that the number she provided was her cell number.  She was approved for a credit card, and subsequently used the credit card to make purchases.  Plaintiff stopped making payments on the credit card, thus Synchrony, the creditor, placed the account with Defendant, Advanced Call Center Technologies, LLC (“ACCT”) for collection.

The case, Schwartz-Earp v. Advanced Call Center Technologies, LLC, from the United States District Court for the Northern District of California (Case No. 15-cv-01582-MEJ) involved claims for violation of the FDCPA, California’s Rosenthal Fair Debt Collection Practices Act, the TCPA, and invasion of privacy.

Between January 17, 2015 and February 22, 2015, ACCT placed at least 134 calls to Plaintiff at the number she provided. ACCT maintained it never intentionally left voicemails for Plaintiff. However, ACCT’s dialing software uses a voice recognition algorithm to distinguish live people from answering machines, and in the event that the algorithm mistakes an answering machine for a live person, a brief message may be left unintentionally.

While it is ACCT’s position that Plaintiff did not answer a majority of the phone calls placed to Plaintiff’s phone number, Plaintiff claims she would answer the call, but a live agent would not respond so she eventually hung up.  It is undisputed that Plaintiff answered a call placed on February 13, 2015.  The last call from ACCT to Plaintiff was placed on February 22, 2015.

On February 22, 2015, Plaintiff called ACCT and agreed to a payment plan to bring her credit card account current. On February 23, 2015, Plaintiff called ACCT and asked to modify the payment plan she had previously agreed to. On February 25, 2015, Plaintiff again called ACCT and asked to cancel the payment plan. During that February 25, 2015 call, Plaintiff also asked for ACCT to stop calling her, and the agent stated that the calls would cease.

Plaintiff filed a Complaint on April 7, 2015, alleging four causes of action:

  1.  violations of two sections of the Fair Debt Collection Practice Act (“FDCPA”), 15 U.S.C. §§ 1692(d) and (f);
  2. violation of California’s Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ. Code §§ 1788-1788.32;
  3. violation of the Telephone Consumer Protection Act (“TCPA”); and
  4. invasion of privacy.

ACCT moved for summary judgment on all claims.

United States Magistrate Judge Maria-Alena James denied ACCT’s Motion for Summary Judgment as to Plaintiff’s § 1692d FDCPA and Rosenthal Act claims, but granted their Motion as to Plaintiff’s § 1692f FDCPA, TCPA, and invasion of privacy claims.

Judge James’ decision as to the TCPA claim is beneficial for debt collection agencies in that the decision approved of an indirect way for collection agencies to obtain prior express consent from consumers.

Judge James’ determined that by providing a cell phone number on an in-store application for a credit card when asked for a telephone number constituted “prior express consent.”  Furthermore, this prior express consent is in relation to the creditor, in this case Synchrony, and not the store itself.

“No reasonable consumer could believe that consenting to be contacted for a store credit card requires that all communications be made by direct employees of the store, but never by the company that issued the card.  When a consumer provides a cellular telephone number to a creditor as part of the underlying transaction, the provision of the number constitutes express consent for the creditor to contact the consumer about the debt.”

The court further stated that the “prior express consent” given to the creditor was also considered prior express consent to the agents of the creditor.  The court wrote:

“An individual may indirectly provide a third party with express consent to be called under TCPA. …calls placed by a third-party debt collector on behalf of the creditor are treated as if the creditor itself placed the call.

For more information on this topic, please contact Stephanie Strickler at sstrickler@messerstrickler.com or 312-334-3465.