Judge Partially Grants MSJ for Defense in TCPA Case, But Leaves Door Open on Consent

A District Court judge in New York has partially granted a defendant’s motion for summary judgment in a Telephone Consumer Protection Act and denied the plaintiff’s motion, in a case that illustrates possessing an individual’s cell phone number is not guaranteed to prove consent to contact that number.

A copy of the ruling in the case of Foster v. National Recovery Agency can be accessed by clicking here.

The plaintiff incurred a medical debt that was placed with the defendant for collection. The defendant attempted to contact the plaintiff on his cell phone. The defendant claimed it received the number from its client, which received it from the plaintiff who provided the number when he arrived for treatment. The plaintiff said he does not recall providing the facility with his cell phone number. The defendant made 73 calls to the plaintiff’s phone and left several messages.

The plaintiff filed suit, alleging the defendant violated the TCPA by using an automated telephone dialing system to place the calls and by leaving pre-recorded messages on his phone without his consent. The plaintiff conceded his ATDS claim became no longer viable following the Supreme Court’s ruling in Facebook v. Duguid. Thus, the judge granted the defendant’s motion for summary judgment on that claim.

Regarding the pre-recorded messages, though, is a different story. While the sides disagree on how many messages were left on the plaintiff’s phone, there is no debate that some messages were left. The defendant argued it was entitled to summary judgment because the plaintiff consented to receiving the messages. Noting that consent is an affirmative defense, Judge Lawrence J. Vilardo of the District Court for the Western District of New York, looked to the arguments made by the defendant that the plaintiff consented to be contacted.

The defendant submitted the intake form from the hospital — which included the plaintiff’s phone number — but there is nothing on the “nearly illegible form indicates it was filled out by, or includes information provided only by, Foster,” Judge Vilardo wrote. “In other words, this document merely demonstrates that whenever the document was typed, Eastern Niagara Hospital had Foster’s phone number from some source.” That is not enough to indicate the plaintiff consented to be contacted, the judge ruled, denying the defendant’s summary judgment on that claim.

The defendant argued that it didn’t make sense for the plaintiff to provide his address, Social Security information, and health insurance details to the hospital and not also give them his phone number, but that is up for a jury to decide, the judge determined.

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