Few v. Receivables Performance Managment LLC

Filing 30

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 11/13/2018. (JLC)

FILED
2018 Nov-13 AM 11:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
TINA FEW,
Plaintiff,
v.
RECEIVABLES PERFORMANCE
MANAGEMENT, LLC,
Defendant.

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CIVIL ACTION NO.
1:17-CV-02038-KOB

MEMORANDUM OPINION
This 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.
Plaintiff 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
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voice” as defined by the TCPA.
As the 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.
I.

STANDARD OF REVIEW
Summary 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.
Fed. R. Civ. P. 56(a).
Receivables 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.
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Receivables 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 fact.
II.

FACTS
Ms. 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).
III.

DISCUSSION
Ms. Few 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
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called party is charged for the call . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).
But the 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.
1.

Revocation of Consent

Prior express consent to receive phone calls is a defense to a TCPA claim.
47 U.S.C § 227(b)(1)(A). But that consent is revocable. See Osorio v. State Farm
Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014). As the court stated in its
Memorandum Opinion on Ms. Few’s motion for reconsideration, a party may
unilaterally and orally revoke consent to receive debt-collection calls given in a
contract unless a contract restricts the means by which the party may revoke
consent. Id.
Here, Ms. Few gave prior express consent to receive calls from Receivables,
but she then orally revoked that consent. No contract provision restricted the
means by which she could revoke consent so her revocation was effective.
Receivables then called her without her consent, so Receivables is not entitled to
judgment as a matter of law.
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2.

ATDS or Artificial or Prerecorded Voice

The TCPA does not prohibit phone calls from every telephone system.
Instead, the TCPA prohibits phone calls only from an ATDS, which the TCPA
defines as “equipment which has the capacity . . . to store or produce telephone
numbers to be called, using a random or sequential number generator; and . . . to
dial such numbers,” or a system that uses “an artificial or prerecorded voice.” 47
U.S.C. § 227(a)(1), (b)(1)(A). Receivables contends that it did not use either of
these prohibited systems.
Receivables submitted with its motion for summary judgment a declaration
from Receivables’s CFO stating that Receivables called Ms. Few with the
“LiveVox Human Call Initiator” telephone system. (Doc. 6-3 at ¶ 26). And
Receivables also submitted a declaration from a LiveVox consultant stating that
the LiveVox Human Call Initiator system does not auto-dial, produce numbers to
be called using a random or sequential number generator, or use an artificial or
prerecorded voice. (Doc. 6-4 at ¶¶ 12, 14, 17). So, according to Receivables, no
genuine dispute could exist that it did not use an ATDS or an artificial or
prerecorded voice to call Ms. Few.
But Ms. Few has not had the opportunity to dispute whether Receivables
used an ATDS or an artificial or prerecorded voice because Receivables brought its
motion for summary judgment before discovery began. The Eleventh Circuit
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requires that a party opposing a motion for summary judgment “be permitted an
adequate opportunity to complete discovery prior to consideration of the motion.”
Jones v. City of Columbus, Ga., 120 F.3d 248, 253 (11th Cir. 1997) (citing Snook
v. Trust Co. of Georgia Bank of Savannah, N.A., 859 F.2d 865, 870–71 (11th Cir.
1988), and WSB–TV v. Lee, 842 F.2d 1266, 1269 (11th Cir. 1988)). And if, as
Receivables does here, the moving party submits affidavits with its motion for
summary judgment before discovery begins, then the non-moving party “has a
right to challenge the affidavits and other factual materials submitted in support of
the motion by conducting sufficient discovery so as to enable him to determine
whether he can furnish opposing affidavits.” Snook, 859 F.2d at 870 (citing
Parrish v. Board of Commissioners of the Alabama State Bar, 533 F.2d 942, 948
(5th Cir. 1976)).
Ms. Few is entitled to the opportunity to conduct sufficient discovery to
determine whether she can dispute that Receivables did not use an ATDS or an
artificial or prerecorded voice. She has not had such an opportunity, so the court
will deny Receivables’s motion for summary judgment as premature.
IV.

CONCLUSION
By separate order, the court WILL DENY Receivables’s motion for

summary judgment and WILL ORDER the parties to fulfill their Rule 26(f)
obligations consistent with the court’s Initial Order.
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DONE and ORDERED this 13th day of November, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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