He Said, She Said: Struggles With Couple’s TCPA Consent Issues

TCPA Connect

Although a federal judge in the Northern District of Ohio found that a husband provided consent for his wife to be contacted on her cellphone, the judge also rejected the idea that the plaintiff contractually waived his right to revoke consent under the Telephone Consumer Protection Act (TCPA), disagreeing with the Second Circuit’s holding in Reyes v. Lincoln Automotive Financial Services.

In Rodriguez v. Premier Bankcard, LLC, plaintiffs Adrena Rodriguez and William Hodge, a married couple, maintained a cellphone account in Hodge’s name with two different phone numbers. When Hodge signed up for a credit card account with defendant Premier Bankcard in July 2014, he provided consent in his credit card agreement to be contacted with calls and messages using an autodialer, prerecorded messages and artificial voices. The credit card account was in his name only and he did not get a card for Rodriguez.

Although he provided a different phone number when he initially signed up for the account, Hodge gave Premier both his and Rodriguez’s cellphone numbers on multiple occasions. He added Rodriguez’s number as a contact number in October 2014, and in February 2016 confirmed with a customer service representative that he could be contacted at his “wife’s number.”

When Hodge fell behind on his credit card payments, Premier began calling both his and Rodriguez’s numbers using an automatic telephone dialing system (ATDS), seeking to collect on the balance. On July 7, 2016, Rodriguez asked a Premier representative to stop calling her number.

On July 12, Hodge asked Premier to stop contacting both numbers, but the company did not and continued to contact both Hodge and Rodriguez regularly for another month until Hodge again asked for the calls to stop, which they did on August 17. The plaintiffs then filed suit pursuant to the TCPA.

Premier moved for summary judgment. The defendant argued that Hodge provided prior express consent to contact both numbers and that his consent precluded Rodriguez’s TCPA claim; in addition, the defendant pointed to the decision by the U.S. Court of Appeals, Second Circuit in Reyes v. Lincoln Automotive Financial Services for the principle that by signing the credit card agreements, Hodge bargained away his right to revoke consent.

U.S. District Judge James G. Carr waded through several issues related to consent before granting the motion for calls up to July 7 and denying it for calls made after that date.

First, Judge Carr agreed with Premier that Hodge provided prior express consent to receive automated calls at both his and Rodriguez’s numbers. Hodge provided the numbers in connection with an existing debt several times over, the court said, and verbally confirmed that he could be contacted at both numbers.

As to Rodriguez, Judge Carr noted that the Federal Communications Commission (FCC) has recognized that the consent of one party may be binding on another, simply as a matter of practical necessity. “Premier was entitled to rely on Hodge’s consent, since the ‘caller in this situation cannot reasonably be expected to divine that the consenting person is not’ the number’s customary user, ‘or to then contact [the customary user] to receive additional consent,’” the court said.

However, Judge Carr disagreed with Reyes (finding it “highly problematic for multiple reasons”) and held that Hodge had the ability to revoke his consent. “The credit card agreements include consent to call provisions, but they do not expressly prohibit Hodge from [unilaterally] revoking his consent for the automated calls,” the court wrote. “I am not persuaded that I can ‘read into’ these agreements ‘an effective, permanent revocation of rights under the TCPA.’”

Hodge cannot have knowingly and voluntarily intended to waive his right to revocation pursuant to a pair of agreements that mention neither revocation of consent nor waiver, Judge Carr explained, “[n]or can I ‘create a new contract’ by inserting a waiver provision into a set of agreements where none exists.”

“Allowing the consumer to revoke his consent verbally is ‘consistent with the government interest articulated in the legislative history of the TCPA,’ namely, ‘enabling the recipient of incessant and unwanted calls to “tell the autodialers to simply stop calling,”’” the court wrote. “In short, ‘adopt[ing] the prohibition on revocation in Reyes … would result in the effective circumvention of the TCPA in the debtor-creditor context.’ I decline the defendant’s invitation to go that route.”

The final wrinkle in the case: determining when Hodge revoked consent. While the defendant conceded that Hodge asked on July 12 for the calls to stop, Rodriguez testified that she first asked on July 7.

Given this factual dispute, Judge Carr drew the line at July 7 for summary judgment purposes. “Because Hodge gave prior express consent to receive Premier’s automated calls, and because such consent precludes Rodriguez’s TCPA claim up to the time of revocation, Premier is entitled to summary judgment on plaintiffs’ TCPA claims arising from calls defendant’s made to plaintiffs before July 7, 2016,” the court explained. “I will, however, deny Premier summary judgment on plaintiffs’ TCPA claims arising from calls defendants made after July 7, 2016.”

To read the order in Rodriguez v. Premier Bankcard, LLC, click here.

Why it matters: The decision addresses several issues related to consent in the context of a married couple. While the court did recognize that Hodge provided prior express consent for himself and his wife, it rejected the Second Circuit’s holding in Reyes to find that even consent contractually granted can be revoked.



pursuant to New York DR 2-101(f)

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