United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
matter comes before the court on reconsideration of Defendant
Receivables Performance Management's amended motion for
summary judgment. (Doc. 14). By separate action (doc. 29),
the court vacated its August 9, 2018 Memorandum Opinion (doc.
21) and Final Order (doc. 22) granting the motion for summary
judgment, and the court now considers the motion once again.
Tina Few alleges that Receivables violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”), by contacting her using an automated
dialing machine in an attempt to collect a debt after she
revoked her consent to receive debt-collection calls.
Receivables moves for summary judgment arguing that (1) Ms.
Few gave consent to receive debt-collection calls and could
not revoke that consent as a matter of law; and (2) that
Receivables did not use an “automatic telephone dialing
system” (“ATDS”) or an “artificial or
prerecorded voice” as defined by the TCPA.
court explained in detail in its Memorandum Opinion on Ms.
Few's motion for reconsideration, Ms. Few could
unilaterally and orally revoke her consent to receive
debt-collection calls as a matter of law. And because the
parties have not engaged in any discovery, Receivables's
motion for summary judgment on the issue of whether its
telephone system is an ATDS or uses an artificial or
prerecorded voice is premature. So the court WILL DENY
Receivables's motion for summary judgment.
STANDARD OF REVIEW
judgment is a significant mechanism for pre-trial resolution.
Summary judgment allows a trial court to decide cases when no
genuine disputes of material fact exist and the moving party
is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56. The court will enter summary judgment if the
movant establishes two necessary elements: (1) that there is
no genuine dispute as to any material fact; and (2) that the
movant is entitled to judgment as a matter of law.
accepts Ms. Few's version of the material
facts-Receivables does not dispute that it repeatedly called
her after Ms. Few attempted to orally revoke her consent. But
Receivables contends that it is entitled to judgment as a
matter of law based on those facts.
then adds a new factual allegation to the record and calls it
“undisputed, ” but as the court discusses below,
Receivables cannot on a motion for summary judgment contend
that no genuine dispute of a material fact exists without
first giving Ms. Few the opportunity to conduct sufficient
discovery to determine whether she can dispute the material
Few's complaint arises out of unwanted calls to collect a
debt. As part of a contract for television and internet
services, Ms. Few gave express written consent for
Receivables to call her telephone number to collect any debts
owed for the services. (Doc. 6-3 at 15). 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. (Doc. 18-1 at ¶¶ 3, 7). Receivables
nevertheless continued calling. Ms. Few contends that she
“has received in excess of 184 telephone calls and text
messages from [Receivables].” (Doc. 1 at ¶ 12).
asserts that Receivables'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. §
TCPA allows calls “made with the prior express consent
of the called party.” 47 U.S.C § 227(b)(1)(A). And
it prohibits calls only from an “automatic telephone
dialing system or an artificial or prerecorded voice”
as defined by the TCPA. 47 U.S.C. § 227(b)(1)(A)(iii).
Receivables contends that its phone calls did not violate the
TCPA under both of these exceptions. The court disagrees.