In an interesting decision, a judge in the Northern District of California held that the service of a Telephone Consumer Protection Act (TCPA) complaint operates as a revocation of consent to receive phone calls from the defendant.

In McMillion v. Rash Curtis & Associates, three consumers filed a putative class action against the defendant Rash Curtis, a nationwide debt collection agency, for alleged violations of the TCPA, Fair Debt Collection Practices Act (FDCPA) and California state law (i.e., the Rosenthal Act, California’s FDCPA equivalent) through the purported use of robocalls, prerecorded voice messages and autodialed calls. According to the plaintiffs, Rash Curtis lacked the prior express consent necessary to call them and continued to call them after they specifically asked the defendant to stop calling.

The parties filed cross-motions for summary judgment on multiple issues, including whether the defendant’s three different dialers constituted automatic telephone dialing systems (ATDS) and whether the plaintiffs had provided prior express consent.

Siding with the plaintiffs in a decision issued in February 2018, U.S. District Judge Yvonne Gonzalez Rogers began with the ATDS issue.

According to Judge Rogers, the record reflected that the defendants used three dialers during the class period, with testimony from Rash Curtis executives that two of the programs are predictive dialers and the third offers predictive functionality and enables the defendant to make ten simultaneous calls per agent to reach “thousands of contacts within minutes.”

Instead of fighting over the function of the dialers, Rash Curtis urged the court to defer its decision on the issue in light of a then-pending (and subsequently issued) decision from the U.S. District Court for the D.C. Circuit in ACA International v. FCC, which concerns whether the 2003 FCC Order and 2008 FCC Ruling—which indicate that predictive dialers constitute ATDSs—are unlawful on due process grounds and under the Administrative Procedure Act.

The court was not persuaded, noting as a threshold matter that the defendant waited more than a year to seek a stay. “Second, the mere deferral of a case does not displace the existing law on the issue of whether predictive dialers constitute ATDSs,” Judge Rogers wrote. “Third, even if the FCC’s Orders are overturned, defendant could still face liability if plaintiffs show that defendant made calls using prerecorded messages or artificial voices which are not at issue in ACA International.”

Moving on to the question of prior express consent, the court first considered one of the named plaintiffs, Sandra McMillion, who provided her cellphone number to Marin General Hospital on several occasions. Because of this fact, the court found that the defendant had prior express consent with regard to calls received on or prior to Feb. 2, 2016.

However, a note in McMillion’s file for that date states she “ASKED FOR NO MORE CALLS AT ALL SHE HAS A ATTY SO I ASKED FOR HIS INFO SHE SAID DNC ME AGAIN AND REMOVE ALL NUMBER.” The defendant made multiple subsequent calls in February 2016.

The defendant argued that McMillion incurred a new debt from Marin General on June 27, 2016, and never revoked consent to be called with regard to that debt, which was referred to Rash Curtis on Dec. 10, 2016.

But Judge Rogers agreed with McMillion that the filing of the lawsuit seeking damages and injunctive relief constituted revocation of consent to be called by the defendant in connection with all debts. “Defendant was served on June 27, 2016,” the court noted. “The Court finds that the service of plaintiffs’ complaint effectively revoked consent to be called by Rash Curtis regarding all debts which McMillion allegedly owed.”

As for the other two named plaintiffs, the court found that Jessica Adekoya revoked her consent during a call when she stated: “I believe you sent something to my mom already. I told you guys to stop calling me, but you guys keep calling me … I asked you nicely to stop calling and that I didn’t have anything that you needed at the moment, but if I do come across it I’ll definitely give you guys a call. But you guys are not supposed to be contacting me.” Although the defendant told the court that this was not a clear expression of Adekoya’s desire not to receive further calls, the court disagreed.

The calls made to the third plaintiff, Ignacio Perez, also lacked consent, the court said, as Rash Curtis was attempting to contact a different individual when it called his cellphone number. “[I]t is undisputed that defendant did not call Perez ‘in connection with a particular debt’ owed by Perez,” the court wrote. “Rather, the calls were in connection with a debt apparently owed by [a] non-party.”

Accordingly, the court granted partial summary judgment in favor of the plaintiffs on the issue of consent, finding that the defendant lacked prior express consent to call each of them, and as to whether the defendant used an ATDS to make the calls.

To read the order in McMillion v. Rash Curtis & Associates, click here.

Why it matters: The decision presents a dilemma for TCPA defendants, holding that the service of a complaint effectuates a complete revocation of consent to receive calls and messages from the defendant. Plaintiffs may continue to conduct business with defendants during the pendency of a lawsuit, so defendants should be cautioned about calling plaintiffs unless defendants are in full compliance with the TCPA. Notably, the D.C. Circuit issued its long-awaited opinion in the ACA International case after the McMillion opinion was issued, and in doing so set aside the FCC previous, overly expansive definition of “automatic telephone dialing system” but declined to set aside its rulings on revocation of consent, among other things.