In Hill v. Homeward Residential, Inc., the Sixth Circuit recently held that a plaintiff could not recover under the Telephone Consumer Protection Act for autodialed calls made to a wireless phone number that the plaintiff provided to the creditor. In so holding, the Court clarified that a consumer is deemed to have provided express consent to be contacted regarding a debt, so long as the consumer provides his or her wireless phone number “in connection with a debt he owes,” even if the phone number is not provided at the time the debt is created or the credit relationship is initiated.
The plaintiff in Hill obtained a mortgage but did not provide his cell phone number to the mortgage provider when the mortgage was first entered into. After his mortgage was sold, he voluntarily provided his cell phone number to the new mortgage company on a number of occasions, both orally and in writing. The successor mortgage provider proceeded to contact him at that number on hundreds of occasions, many of which involved use of a device that the plaintiff contended was an automated telephone dialing system under the TCPA.
The trial court denied summary judgment and allowed the case to proceed to trial on two disputed issues of material fact: whether the device in question was an ATDS, and whether the plaintiff had consented to be called via ATDS on his cell phone. The jury returned a general verdict in the defendant’s favor, and the plaintiff appealed.
On appeal, the plaintiff challenged a jury instruction that provided, in part, “autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” The plaintiff contended that the jury instead should have been instructed that prior express consent could be found only where the consumer provided his wireless number “during the transaction that created the debt owed.” Relying on the Federal Communications Commission’s pronouncement in In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (2008), the Sixth Circuit rejected this argument, and held that so long as the cell number is provided before any autodialed calls, the consumer is deemed to have provided prior express consent. The Sixth Circuit also held that in the debt collection context, the consumer does not need to give specific consent to be called using an ATDS; consent to be called at the number in question will suffice. The Court did observe, as have a number of other courts, that the call in question had to be for purposes of collecting on the debt in connection with which the consumer provided the number.
While only a few courts have addressed the question of whether providing a wireless number after the transaction giving rise to the debt constitutes prior express consent, the Sixth Circuit’s decision is consistent with recent decisions in the Tenth and Eleventh Circuits and in the Western District of New York.
The plaintiff also challenged the trial court’s denial of summary judgment that the device used was an ATDS. For procedural reasons, the Sixth Circuit held that the plaintiff had waived his right to appeal that issue, and did not address whether the device in question was an ATDS.