United States District Court, D. Colorado
STEVEN R. JOHNSTON, Plaintiff,
USAA FEDERAL SAVINGS BANK, Defendant.
MEMORANDUM OPINION AND ORDER
LEWIS T. BABCOCK, District Judge.
This matter is before me on a Motion for Summary Judgment filed by Defendant, USAA Federal Savings Bank, in which it seeks judgment against Plaintiff, Steven R. Johnston, on his claims made pursuant to the Telephone Consumer Protection Act (the "TCPA"), the Colorado Consumer Credit Code, and a common law claim for invasion of privacy, as well as judgment in its favor on its counterclaims for breach of contract and unjust enrichment. [Doc #48] Oral arguments would not materially assist me in my determination. After consideration of the parties' arguments, and for the reason stated, I GRANT Defendant's motion as to Plaintiff's TCPA claim; I DENY the motion as to the remaining claims and counterclaims; and I DISMISS the case.
Plaintiff has a credit card with USAA Savings Bank, and Defendant is the servicer of that credit card. [Doc #48 Ex. B] Plaintiff signed up to do business with USAA entities online and, as such, was subject to the terms and conditions of USAA's online agreement. [Doc #48 Ex. H] That agreement provides that Plaintiff, as the Cardholder, authorized all USAA entities to contact him at the telephone numbers he provides in his Cardholder's online profile. In addition, the online agreement provides that Plaintiff may revoke such authorization by removing his phone numbers from his profile. [Doc #48 Ex. H] In September of 2003, Plaintiff provided two telephone numbers in his profile - his home phone number and he listed his cellular phone number as his "business number." [Doc #48 Ex. B] As of the date of this motion, Plaintiff had not removed his cell phone number from his online profile. [Doc #48 Ex. A, pg. 175, Ex. B][Doc #52 Ex. V]
On June 27, 2012, Plaintiff defaulted by failing to make payments on the credit card balance of $19, 611.79. [Doc #48 Ex. E] Thereafter, in early July of 2012, Defendant began to attempt to contact Plaintiff via telephone regarding the outstanding balance on his account. [Doc #48 Ex. L Ex. M] For the purposes of this motion, Defendant does not contest Plaintiff's assertion (evidenced by his handwritten log) that it used an automatic telephone dialing system to dial Plaintiff's cell phone and home phone numbers 105 times - over the period from early July 2012 through July 30, 2012 - in order to talk to him about his outstanding balance. [Doc #48 Ex. M] The handwritten log indicates that 20 of those calls were to Plaintiff's cell phone. Defendant also does not contest, for the purposes of this motion, that it only actually spoke with Plaintiff three times and that during these three conversations, all to his home number, Plaintiff asked Defendant to stop calling him. [Doc #48 Ex. G pp. 210-14]
On July 28, 2012, Plaintiff sent a letter, via facsimile, asking Defendant to stop calling his cell phone number, which had previously been designated as his business number in his online profile. [Doc #48 Ex. T] Defendant responded by placing Plaintiff's cell phone number on a "do not call" list and, as such, it claims that it made no further calls to his cell phone after July 30, 2012. [Doc #48 Ex. B Ex.L] [Doc #49 Ex. 2, pg. 14] Plaintiff contends, however, that after sending his letter, he received four more calls to his cell phone from Defendant. [Doc #49 Ex. 1]
Plaintiff then filed this lawsuit claiming Defendant's actions in calling his cell phone with an automatic dialing system violated the TCPA pursuant to 47 U.S.C. §227(b)(1)(A)(iii). That section makes it unlawful to use an automatic telephone dialing system to call any telephone number assigned to a cellular telephone service, except calls made for emergency purposes or made with the prior express consent. Plaintiff also alleges a common law claim for Invasion of Privacy by Intrusion and a state law claim for violation of the Colorado Consumer Credit Code, pursuant to Colo. Rev. Stat. §5-5-109, by use of unconscionable conduct in the collection of a debt. Defendant, in response, filed counterclaims for Breach of Contract and Unjust Enrichment seeking collection of the debt. In this motion, Defendant asks that I dismiss Plaintiff's claims against it, enter judgment in its favor on its counterclaims, as a matter of law, and award it $20, 405.82 as the outstanding amount owed by Plaintiff on his credit card account.
III. SUMMARY JUDGMENT STANDARD
When deciding a motion for summary judgment under Fed.R.Civ.P. 56, summary judgment shall be granted for the movant if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The non-moving party has the burden of showing that there are issues of material fact to be determined . Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If a reasonable juror could not return a verdict for the non-moving party, summary judgment is proper and there is no need for a trial. Id. at 323. The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, summary judgment should not enter if, viewing the evidence in a light most favorable to the plaintiff and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for the plaintiff. Celotex v. Catrett, supra, 477 U.S. at 252; Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 1992).
IV. TCPA CLAIM
Because it is dispositive, I first address Defendant's request for summary judgment in its favor on Plaintiff's claim against it under the TCPA. In Plaintiff's first claim for relief, he asserts a violation of the TCPA pursuant to 47 U.S.C. §227(b)(1)(A)(iii), which makes it unlawful "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice... to any telephone number assigned to a... cellular telephone service." The burden of proof is on the defendant to establish that the plaintiff expressly consented to be contacted at his or her cell phone number. Chavez v. Advantage Group, 959 F.Supp.2d 1279, 1281 (D.Colo. 2013)( citing In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 F.C.C.R. 559, 564-65 ¶10 (F.C.C. 2008); Frausto v. IC System, Inc., 2011 WL 3704249 (N.D. Ill. 2011)).
For the purposes of this motion, Defendant concedes that it used an automatic telephone dialing system to dial Plaintiff's cell phone and home phone numbers a total of 105 times in July of 2012, and that it spoke with Plaintiff three times at his home number, during which Plaintiff asked Defendant to stop calling him. Then, after Plaintiff sent a letter to Defendant asking it to stop calling his cell phone number, Defendant placed that number on a "do not call" list and claims it made no further calls to his cell phone after July 30, 2012.
Because Plaintiff expressly agreed that Defendant could contact him via his phone numbers in his online profile, and he then provided Defendant his cell number by designating it as his "business number, " Defendant argues that its actions in calling his cell phone could not, as a matter of law, constitute a violation of 47 U.S.C. §227(b)(1)(A)(iii). In support of this argument, Defendant refers me to Chavez v. Advantage Group, 959 F.Supp.2d 1279 (D.Colo. 2013), which ruled that the defendant was entitled to summary judgment on the plaintiff's TCPA claim when the plaintiff provided her cell phone number to a medical center to whom she owed a debt for the provision of medical services. The medical center assigned the debt for collection to the defendant who, in turn, used an automatic telephone dialing system in an attempt to contact the plaintiff on her cell phone. The Court in Chavez v. Advantage Group, supra , concluded that the plaintiff "gave prior express consent to defendant to contact her cell phone number in connection with the debt incurred as a result of the services provided to her" at the medical center. 959 F.Supp.2d at 1283. The Court relied upon a 2008 ruling issued by the Federal Communications Commission, which concluded that "the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt." Id. at 1281 ( quoting 2008 FCC Ruling at 564-65, ¶ 10). As such, the Court in Chavez v. Advantage Group adopted the FCC declaration that "autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt... are permissible." Id. ( quoting 23 F.C.C.R. at 564, ¶ 9).
Plaintiff, in response, urges me to follow authority from other Circuits which have held that a consumer may revoke their prior express consent to be contacted by an automatic dialing system on their cell phone number. The TCPA does not expressly allow consumers to revoke prior express consent. See 47 U.S.C. § 227; In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 F.C.C.R. 15391, 15394 ¶ 8 (2012)(noting neither text nor legislative history of the TCPA directly addresses circumstances where prior express consent is deemed revoked). However., in Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3rd Cir. 2013), the Third Circuit determined that "in light of the TCPA's purpose (to protect individual consumers from receiving intrusive and unwanted calls), any silence in the statute as to the right of revocation should be construed in favor of consumers." Id. at 268 (citing ...