Troy Williams v. Capital One Bank (USA) N.A.

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6829210-1] [6829210] [16-3850]

Case: 16-3850

Document: 19
Filed: 03/28/2017
Pages: 3
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Submitted March 27, 2017 *
Decided March 28, 2017
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-3850
TROY T. WILLIAMS,
Plaintiff-Appellant,

Appeal from the United States
District Court for the Northern District
of Illinois, Eastern Division.

v.
CAPITAL ONE BANK (USA), N.A.,
Defendant-Appellee.

No. 15 C 5012
Elaine E. Bucklo,
Judge.
ORDER

Troy Williams appeals the district court’s grant of summary judgment in favor of
Capital One on his claim that Capital One violated the Telephone Consumer Protection
Act, 47 U.S.C. § 227, by phoning him to collect his unpaid credit-card debt. Because the

We have agreed to decide this case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. See FED R. APP. P. 34(a)(2)(C).
*

Case: 16-3850
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undisputed evidence shows that Williams validly consented to these calls by giving
Capital One his cell phone number with his credit card application, we affirm.
We construe the evidence in favor of Williams, the party opposing summary
judgment. Allin v. City of Springfield, 845 F.3d 858, 861 (7th Cir. 2017). Williams applied
for a Capital One credit card over the phone in July 2004. As part of the over-the-phone
application, Williams orally gave Capital One his cell phone number as his contact
number. Capital One approved Williams’ application and sent him a credit card.
Williams made purchases with the card, but he fell behind on his payments and then
stopped paying altogether. Beginning in August 2009, Capital One called his cell phone
with an automatic dialing system for about a year, between 15 and 30 times Williams
says, to arrange payments. Williams also received calls from a debt-collection firm
representing Capital One. He never asked the callers to stop calling. Eventually
Capital One obtained a default judgment for the debt in an Alabama state court.
This lawsuit followed. Williams sued Capital One for, he contends, using an
automatic telephone dialing system to call his cell phone without his consent, in
violation of the Telephone Consumer Protection Act. Capital One moved for summary
judgment, arguing that, by providing his cell phone number during his over-the-phone
application, Williams consented to receive the calls. Williams responded that without a
written signature from him he did not consent. The district court granted summary
judgment for Capital One. It relied on a 2008 order from the Federal Communication
Commission: “autodialed and prerecorded message calls to wireless numbers that are
provided by the called party in connection with an existing debt are permissible as calls
made with the ‘prior express consent’ of the called party.” In re Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 559 (2008).
On appeal Williams repeats his contention that because he never signed a written
agreement he did not consent to Capital One auto-calling him. The FCC, however, has
ruled otherwise. “If an autodialed or prerecorded call to a wireless number is not for
[telemarketing or advertising] purposes, the consent may be oral or written.” In re Rules
& Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7992
n.204 (2015). See also In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991, 23 FCC Rcd. 559, 564–65 (2008); In re Rules & Regulations Implementing the Tel.
Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 (1992). The FCC has also ruled that
giving a creditor a cell phone number “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.” 23 FCC Rcd. at 564. See also Hill v. Homeward Residential,

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Inc., 799 F.3d 544, 551–52 (6th Cir. 2015); Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d
1110, 1122 (11th Cir. 2014). This consent renders Capital One’s calls lawful. See 47 U.S.C.
§ 227(b)(1)(A).
We must presume that these FCC rulings are valid. See CE Design, Ltd. v. Prism
Bus. Media, Inc., 606 F.3d 443, 449 (7th Cir. 2010). The Administrative Orders Review Act,
also called the Hobbs Act, see 28 U.S.C. §§ 2341 to 2252, provides that an FCC order may
be challenged only through a timely, direct appeal to a court of appeals after petitioning
the FCC for relief. See 28 U.S.C. §§ 2342(1), 2344; City of Peoria v. General Elec. Cablevision
Corp., 690 F.2d 116, 120 (7th Cir. 1982). A party may not circumvent the Hobbs Act by
appealing a district court’s decision that, as here, merely implements the order. CE
Design, 606 F.3d at 449 & n.5 (quoting GTE S., Inc. v. Morrison, 199 F.3d 733, 743 (4th Cir.
1999)). Because these presumptively valid rules provide that a customer may, when
applying for credit, orally consent to calls from the creditor, and because Williams gave
and never revoked that consent, Capital One did not violate the law by calling him.
Williams also contests the validity of the debts on which Capital One obtained its
default judgment. But the validity of those debts is irrelevant to whether Capital One
violated the Telephone Consumer Protection Act. We have considered the rest of
Williams’ arguments, and none merits discussion.
AFFIRMED.