The Seventh Circuit Court of Appeals may soon clarify what constitutes express consent under the Telephone Consumer Protection Act (TCPA). U.S. District Court Judge John J. Tharp, Jr. has certified an interlocutory appeal on the question of whether providing another with your cell phone amounts to consent to being “robocalled” on that number. In Melissa Thrasher-Lyon vs. CCS Commercial, LLC, United States District Court Northern District of Illinois, the plaintiff Thrasher-Lyon alleged she struck a car while riding her bike. Illinois Farmers Insurance insured the car’s driver. At the scene of the accident, Thrasher-Lyon gave her cell phone number to the driver and to the police officer who responded. Later she exchanged calls with Farmers using that same cell phone. During her conversations with Farmers she admitted that she had caused the accident, and that the cell phone number she had given at the accident scene was her only telephone number. Farmers then submitted its subrogation claim to Thrasher-Lyon, and thereafter retained CCS Commercial LLC to collect.
CCS’s collection efforts included calls using a automatic dialer. Thrasher-Lyon alleged in her lawsuit that CCS’s calls were not permitted under the TCPA. The district court noted that the TCPA permits the use of an automatic telephone dialing system when the called party has given express consent. However the Court found, “As a matter of law, Thrasher-Lyon’s provision of her telephone number to the [sic] Ferguson, the police, and Farmers was not prior express consent to receive CCS’s robocalls on her cellular phone.” In otherwords, providing a telephone number is not the same thing as giving permission to be called with an auto dialer. The Court granted the plaintiff’s motion for summary judgment, holding that, except in a debtor/creditor relationship, the TCPA requires that a person expressly consent to auto dialer calls.
According to the CCS, the Court’s ruling ignored a FCC 1992 order which stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” The district court has certified the case for immediate appeal. The Seventh Circuit has not yet ruled on whether it will grant leave to appeal.
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