A Kentucky District Court judge recently granted in part and denied in part a defendant’s motion for summary judgment in a case involving the Telephone Consumer Protection Act (TCPA), Barnett v. First National Bank of Omaha. The court found that the plaintiff’s request to have information sent by post rather than by telephone, as well as the plaintiff’s refusal to speak to a collector when the defendant called after choosing mail delivery, raised a real question of fact since the plaintiff has revoked his consent to be contacted, even without express revocation. In Barnett v. First National Bank of Omahathe court considered consent and revocation under FCC rules that implement the requirements of the TCPA.
There, the plaintiff obtained a credit card from the defendant, using his cell phone as a means for the defendant to contact him. In 2019, Plaintiff was unable to make his minimum monthly payment and Defendant began contacting him through his phone system to discuss his missed payments, eventually contacting Plaintiff 574 times, an average of 3 ,2 times per day. At one point, the plaintiff asked the defendant to mail him his billing statements and began hanging up the phone on the defendant’s representatives.
Plaintiff brought an action in the Western District of Kentucky, alleging that Defendant violated the TCPA (47 USC § 227) and the Kentucky Consumer Protection Act (KCPA) (Ky. Rev. Stat. § 367.170) by contacting him via an automated phone number. system before and after he revoked his consent to be contacted. The plaintiff also sued the defendant for trespassing in solitary confinement. The defendant filed a motion for summary judgment.
Based on the Supreme Court’s decision in Facebook v Duguid in concluding that the defendant was not using an automated telephone dialing system, the court granted the defendant’s motion on this issue and then focused its analysis on whether the calls made to the plaintiff occurred after the revocation of consent.
The defendant argued that the plaintiff never specifically revoked his consent to be contacted after listing his cell phone number on his credit card application. The plaintiff argued that he revoked his consent when he (1) told the defendant not to call him and (2) asked the defendant’s representatives to mail his statements or hung up on them when they had called. The defendant countered that the plaintiff never provided a “clear revocation” of his consent.
Although the court noted that the TCPA is “silent as to whether and how a consumer may revoke a previously granted consent”, the court ultimately, by considering the “totality” of the circumstances, concluded that the parties’ arguments clearly demonstrated the remaining contentious issues. fact for a jury.
The court’s decision in Barnett provides an overview of how courts may consider disputes over consent, in the absence of express revocation under the TCPA. Even if a plaintiff does not expressly revoke their consent to be contacted, this does not automatically guarantee that a defendant will prevail on summary judgment.