United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
Tina Few asserts that Defendant Receivables Performance
Management violated the Telephone Consumer Protection Act, 47
U.S.C. § 227, by contacting her at least 184 times using
an automated dialing machine in an attempt to collect a debt
for satellite television and internet services. This matter
is before the court on Receivables's amended motion for
summary judgment (doc. 14).
moves for summary judgment arguing, in part, that Ms.
Few's claim must fail because she consented to receiving
the debt-collection calls on her cell phone. Ms. Few responds
that she revoked her consent before receiving many of the
calls. Receivables, however, replies that Ms. Few offered her
consent as part of a contractual agreement.
court agrees with Receivables's position; Ms. Few could
not unilaterally revoke her consent to receive
debt-collection calls because she agreed to provide that
consent as part of a bargained-for exchange. The court will
GRANT Receivables's amended motion for summary judgment
judgment is an integral part of the Federal Rules of Civil
Procedure. Summary judgment allows a trial court to decide
cases when no genuine issues of material fact are present and
the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56. When a district court
reviews a motion for summary judgment, it must determine two
things: (1) whether any genuine issues of material fact
exist; and if not, (2) whether the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c).
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). The moving
party can meet this burden by offering evidence showing no
dispute of material fact. Id. at 322-23.
the moving party meets its burden of showing the district
court that no genuine issues of material fact exist, the
burden then shifts to the non-moving party “to
demonstrate that there is indeed a material issue of fact
that precludes summary judgment.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
In reviewing the evidence submitted, the court must
“view the evidence presented through the prism of the
substantive evidentiary burden, ” to determine whether
the nonmoving party presented sufficient evidence on which a
jury could reasonably find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986); Cottle v. Storer Commc'n, Inc., 849 F.2d
570, 575 (11th Cir. 1988). And, the court must view all
evidence and inferences drawn from the underlying facts in
the light most favorable to the nonmoving party. Graham
v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th
Tina Few and DISH, a satellite communications firm, agreed to
a contract to provide Ms. Few with DISH's television and
high-speed internet services. As part of the contract, Ms.
Few provided DISH with a telephone number ending in 0268 and
authorized DISH “and/or any debt collection agency
and/or debt collection attorney hired by DISH, ” to
contact her at that number “to recover any unpaid
portion of [her] obligation to DISH, through an automated or
predictive dialing system or prerecorded messaging
system[.]” (Doc. 6-3 at 9; Doc. 6-3 at 15). Ms. Few
signed the document immediately above this language.
April 2017, DISH provided Defendant Receivables Performance
Management, a debt-collections firm, with the 0268 phone
number for the purpose of recovering an alleged debt on the
account. On April 27, 2017, Ms. Few answered a call from
Receivables and informed the caller that she no longer wished
to receive calls from Receivables. Receivables nevertheless
continued calling, ultimately placing, in Ms. Few's
estimation, “in excess of 184 telephone calls and text
messages.” (Doc. 1 at 3 ¶ 12).
asserts that Receivable's phone calls and text messages
violated the TCPA. The TCPA forbids any person to make a call
“using any automatic telephone dialing system or an
artificial or prerecorded voice . . . to any telephone number
assigned to a paging service, cellular telephone service,
specialized mobile radio service, or other radio common
carrier service, or any service for which the called party is
charged for the call . . . .” 47 U.S.C. §
227(b)(1)(A). But calls made “with the prior express
consent of the called party” are not prohibited.
case, Ms. Few contends that, although she may have initially
provided DISH- and, by extension, Receivables, which acted as
DISH's agent for the purpose of debt collection-with
consent to call the 0268 number, she revoked that consent
orally on April 27, 2017. Receivables, however, responds that
Ms. Few could not unilaterally revoke her ...