Zondlo v. Allied Interstate, LLC

Filing 44

MEMORANDUM (Order to follow as separate docket entry) re 27 36 MOTION /CROSS MOTION for Summary Judgment.Signed by Honorable James M. Munley on 2/12/18. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHERYL ZONDLO,
Plaintiff
v.

:
No. 3:16cv936
:
:
(Judge Munley)
:
ALLIED INTERSTATE, LLC,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Pending before the court are cross-motions for summary judgment filed by
Plaintiff Cheryl Zondlo and Defendant Allied Interstate, LLC, in this Telephone
Consumer Protection Act of 1991, 47 U.S.C. § 277, violation case. The motions
have been fully briefed and are ripe for disposition.
Background
Between May 2005 and June 2013, Plaintiff Cheryl Zondlo opened several
retail store credit cards including one at Gap, one at American Eagle Outfitters
and one at JCPenney. (Doc. 27, Def. Stmt. of Mat. Facts (hereinafter “SOF”) ¶
2).1 Gap, JCPenney and American Eagle Outfitters each issue their credit cards
through Synchrony Bank. (Id. ¶ 1). This lawsuit involves Defendant Allied

1

For this brief factual background section, we will cite primarily to the defendant’s
statement of material facts as to which no genuine issue remains to be tried. The
plaintiff generally agrees with these background facts. Where more context is
necessary, we will cite to the plaintiff’s statement of material facts.

Interstate, LLC, a third-party debt collector, telephoning plaintiff regarding these
accounts.
Gap Account
After experiencing financial difficulties, plaintiff fell behind on her credit card
payments. (Id. ¶ 7). On September 15, 2015, Synchrony Bank placed plaintiff’s
Gap account with Defendant Allied Interstate, LLC (hereinafter “Allied” or
“Defendant”) for collections. (Id. ¶ 16).
Soon thereafter, defendant began making calls to the plaintiff on the
number she had provided Synchrony Bank, that is, her landline telephone
number (hereinafter “9301 Landline Number”)(Id. ¶ 14). Defendant’s calls
involved an attempt to collect the outstanding debt on her Gap account. (Id. ¶¶
14, 17).
American Eagle Outfitters Account/ Revocation of Consent
Plaintiff also fell behind on her American Eagle Outfitters Account. On
October 7, 2015, plaintiff telephoned a number associated with her American
Eagle Outfitters account and spoke to an agent at Synchrony Bank. (Id. ¶ 27).
Initially, plaintiff asked the agent about the balance owed on her American Eagle
Outfitters account and the application of interest on that account. (Id. ¶ 30).
During the phone call, plaintiff revoked consent for Synchrony Bank to
telephone her regarding her debt. Specifically, she stated to the Synchrony Bank
2

agent: “You no longer have permission to call me or my spouse on any phone
number regarding any accounts.” (Doc. 37, Pl.’s SOF ¶ 16).
In response, Synchrony Bank placed a notation on plaintiff’s American
Eagle Outfitters account that plaintiff should not be contacted by cell phone or
automated dialer.2 (Doc. 27, Def.’s SOF ¶ 38). Synchrony did not place such a
notation on plaintiff’s Gap or JCPenney account. (Id. ¶ 39).
As noted, plaintiff called and spoke to an agent of Synchrony Bank, not the
bank’s debt collector, Defendant Allied. Synchrony did not inform Defendant
Allied that plaintiff revoked consent to be telephoned. Defendant, thus, continued
to call plaintiff on her 9301 Landline Number regarding her Gap account. (Id. ¶¶
40, 43).
JCPenney Account
On October 15, 2015, approximately a week after plaintiff revoked consent
to telephone calls, Synchrony Bank placed plaintiff’s JCPenney account with
defendant for collection. (Id. ¶ 41). Defendant soon thereafter began calling
plaintiff’s cell phone number (hereinafter “3231 Cell Number”).3 (Id. ¶ 44).

2

The parties have stipulated that prior to this phone call, Synchrony Bank had
consent to call both plaintiff’s 3231 Cell Number as well as her 9301 Landline
Number. (Doc. 34, Stipulation of Facts ¶ 13).
3

According to Synchrony Bank’s business records, plaintiff provided the 9301
Landline Number to Synchrony Bank in connection with her JCPenney account in
3

Plaintiff saw a “missed call” on her cell phone from an unknown number on
October 19, 2015. Plaintiff called the number back and confirmed that Defendant
Allied had called her as a third-party debt collector regarding her JCPenney
account. (Id.) Plaintiff did not ask Allied to stop calling her during this phone call.
(Id. ¶ 46).
Changing landline service into a cellular service
A month later, on November 18, 2015, plaintiff “ported” her 9301 Landline
Number from a landline service to a cellular service. (Doc. 35, Pl.’s Ans. To
Def.’s SOF ¶ 72). Through the “porting”, calls to plaintiff’s landline number now
came through a wireless network. Defendant continued to call plaintiff on both
her 9301 Landline Number and her 3231 Cell Number until January 24, 2016,
when plaintiff’s accounts were sold to a third-party debt buyer. (Doc. 27, Def.’s
SOF ¶ 70).
Number of calls plaintiff received
The parties have stipulated that after plaintiff revoked consent to call her,
the defendant placed a total of sixty-six (66) calls to her on the 3231 Cell
Number. (Doc. 34, Stipulations of Fact ¶ 1). After plaintiff ported her 9301

May 2005. In January 2014, plaintiff updated her JCPenney account and
provided the 3231 Cell Number to Synchrony Bank. (Doc. 27, Def.’s SOF ¶ 13).
4

Landline Number into a wireless number, the defendant placed 246 calls to
plaintiff’s 9301 Landline Number. (Id. ¶ 2).4
Thus, at issue, in this case is whether plaintiff’s revocation of consent to
telephone calls, made while calling about her American Eagle account, also
applies to her Gap and JCPenney accounts. Also the issues in this case involve
whether plaintiff’s revocation of consent to Synchrony Bank applies to the thirdparty debt collector Synchrony hired, that is, Defendant Allied. Next, the parties
argue over whether defendant acted properly in continuing to call plaintiff’s
landline number after it had been changed into a cell phone number.
Based upon these facts, plaintiff initiated this action by filing a complaint in
the Court of Common Pleas for Luzerne County on April 19, 2016, alleging
violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227. The
defendant removed the matter to this court on May 19, 2016. (Doc. 1). At the
close of discovery, the defendant moved for summary judgment. Plaintiff, in
response, filed a cross-motion for summary judgment, bringing the case to its
present posture.
Jurisdiction

4

The parties also stipulate that the defendant placed 77 phone calls to plaintiff on
her 3231 Cell Number using “Quallbar software.” (Doc. 34, Stipulations of Fact ¶
3). The parties do not mention this software or the calls received from this
software anywhere else in their filings.
5

The court has federal question jurisdiction over this Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 277, violation case. See 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”); 28 U.S.C. §§
1343(a)(3), (4) (granting district court jurisdiction over civil actions brought to
redress deprivations of constitutional or statutory rights by way of damages or
equitable relief).
Legal Standard
Granting summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114
F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(C)). “[T]his standard
provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original).
In considering a motion for summary judgment, the court must examine the
facts in the light most favorable to the party opposing the motion. Int'l Raw
6

Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The
burden is on the moving party to demonstrate that the evidence is such that a
reasonable jury could not return a verdict for the non-moving party. Anderson,
477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the
suit under the governing law. Id. Where the non-moving party will bear the
burden of proof at trial, the party moving for summary judgment may meet its
burden by establishing that the evidentiary materials of record, if reduced to
admissible evidence, would be insufficient to carry the non-movant's burden of
proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party
satisfies its burden, the burden shifts to the nonmoving party, who must go
beyond its pleadings, and designate specific facts by the use of affidavits,
depositions, admissions, or answers to interrogatories demonstrating that there is
a genuine issue for trial. Id. at 324.
Discussion
Plaintiff has sued the defendant alleging violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 (hereinafter “TCPA”). Pursuant to the
TCPA, it is unlawful for any person “to make any call (other than a call made for
emergency purposes or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or prerecorded voice
. . . to any telephone number assigned to a . . . cellular telephone service.” 47
7

U.S.C. § 277(b)(1)(A). The parties here agree that the defendant is a “person”
under the meaning of the statute. The parties further agree that after October 7,
2015, defendant placed 66 calls to her 3231 Cell Number using aQrate software.
After November 18, 2015, the defendant, using aQrate software, placed 246 calls
to plaintiff’s 9301 Landline Number, which at this point plaintiff had ported to a
cellular network. None of these calls were made for emergency purposes.
The parties have filed cross-motions for summary judgment on largely
stipulated facts.5 The issues that remain in dispute are: (1) whether the plaintiff
has standing to pursue her TCPA claim; (2) whether the defendant used an
automatic telephone dialing system when it called the plaintiff; (3) whether the
defendant had prior express consent to call plaintiff after October 7, 2015; and
(4) whether the defendant was entitled to continue placing calls to plaintiff’s 9301
Landline Number after November 18, 2015. We will address these issues
seriatim.
I. Whether Plaintiff Has Standing to Pursue Her Claim
At the outset, defendant argues that plaintiff does not have standing to
pursue this lawsuit. To demonstrate that she has standing, plaintiff must establish

5

Plaintiff’s brief supporting her motion for summary judgment is entitled “Brief in
Support of Plaintiff’s Cross-Motion for Summary Judgment and in Opposition to
Defendant’s Motion to Summary Judgment.” (Doc. 38). It appears as though the
issues brought up in plaintiff’s motion are identical to the issues brought up in the
defendant’s motion. Thus, we will address the cross-motions together.
8

that she suffered an injury in fact connected with receiving calls from Allied.
Defendant argues that she has not met this burden. The defendant asserts that
in order to suffer injury under the TCPA, the phone calls must have been
unwanted. Here, according to the defendant, plaintiff clearly wanted to receive
these phone calls as she, while represented by counsel and receiving legal
advice on her financial issues, was in the process of concocting a TCPA lawsuit.
As such, the defendant argues that the plaintiff’s interests in pursuing this lawsuit
are not “within the zone of interests intended to be protected by the statute;”
rather, she is simply looking for a way out of financial trouble. (Doc. 27, Def.’s
Motion for Sum. Judg. at 21).
“Article III of the Constitution limits the judicial power of the United States to
the resolution of Cases and Controversies, and Article III standing enforces the
Constitution's case-or-controversy requirement.” Hein v. Freedom From Religion
Found., Inc., 551 U.S. 587, 597–98 (2007). “One of the controlling elements in
the definition of a case or controversy under Article III is standing.” Id. at 598.
The law is clear that one of the elements necessary for establishing “the
irreducible constitutional minimum of standing” under Article III is that the plaintiff
“must have suffered an injury in fact—an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or imminent, not

9

conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61
(1992).
In response to the defendant’s standing argument, plaintiff points to several
cases, though none binding, in which courts have held that unsolicited contact in
itself in the form of phone calls qualifies as a form of concrete harm. (See Doc.
38, Pl.’s Br. in Supp. of Pl.’s Cross Mot. for Sum. Judg. at 34-36 (citing Van
Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017);
Krakauer v. Dish Network L.L.C., 168 F. Supp. 3d 843, 845 (M.D. N.C. 2016);
Aranda v. Carribean Cruise Line Inc., 202 F. Supp. 3d 850, 858 (N.C. Ill. 2016);
Booth v. Appstack, Inc., 2016 WL 3030256, at *5 (W.D. Wash. May 25, 2016),
order clarified, 2016 WL 3620798 (W.D. Wash. June 28, 2016); Mey v. Got
Warranty, Inc., 193 F. Supp. 3d 641, 644-45 (N.D. W.Va. 2016); LaVinge v. First
Cmty. Bancshares, Inc., 215 F. Supp. 3d 1138, 1146 (D.N.M. 2016); Caudill v.
Wells Fargo Home Mortg., Inc., 2016 WL 3820195, at *3 (E.D. Ky. July 11,
2016))). Plaintiff further argues that we should not afford weight to the fact that
she was represented by counsel and was advised with respect to the events that
created the alleged TCPA violation because “there is nothing improper about a
consumer obtaining legal services to determine her rights.” (Doc. 38, Pl.’s Br. in
Supp. of Pl.’s Cross Mot. for Sum. Judg. at 31).

10

After a careful review, we agree with the plaintiff. Congress passed the
TCPA to protect consumers, like the plaintiff, from unwanted telephone calls. See
Gager v. Dell Financial Services, LLC, 727 F.3d 265, 268 (3d Cir. 2013)(citing
Mims v. Aarow Fin. Servs., LLC, 565 U.S. 368, 372 (2012)). We have found
nothing in the record to suggest that plaintiff “wanted” to receive over 300 phone
calls from the defendant. In fact, the evidence appears to be to the contrary, as
the parties agree that plaintiff spoke with a representative at Synchrony Bank on
October 7, 2015, and expressed her desire that she not be called on any of her
numbers moving forward.
We also find it insignificant that counsel represented plaintiff during this
period of time. Plaintiff claims that she retained counsel in September of 2015 to
discuss filing for bankruptcy. (Doc. 37-4, Affidavit of Zondlo ¶ 18).
Whether or not plaintiff’s legal consultation led to plaintiff’s counsel providing her
with information about the TCPA and suggesting that she may be able to recover
money from such a suit, is irrelevant. We have found no case law, nor has the
defendant provided us with any, which requires that plaintiff be ignorant of her
legal rights throughout the process of filing a lawsuit.
Moreover, the case law that the defendant primarily relies on in asserting
this argument concerning plaintiff’s motives, Stoops v. Wells Fargo Bank, N.A.,
197 F. Supp. 3d 782, 803-804 *13 (W.D. Pa. 2016), presents facts that are
11

entirely different from those we have before us today. In Stoops, the court found
that the plaintiff did not have standing to pursue her TCPA claim because she
was a “professional plaintiff” who admitted that she purchases cell phones with
the hope of receiving calls from creditors for the sole purpose of collecting
statutory damages. Id. at *15. Here, no evidence suggests that plaintiff initiated
these phone calls or did anything to increase the number of calls she received.
As noted above, if anything, the record reflects that plaintiff affirmatively took
action to lessen the number of phone calls she received, as she asked
Synchrony Bank to stop calling her.
As such, we find that because the plaintiff alleges that she received
unwanted phone calls from the defendant, in violation of the TCPA, plaintiff has
suffered an injury and does have standing to pursue this claim.
II. Whether Allied Used an Automated System to Call Plaintiff
Next, the parties dispute whether the dialing system used by the defendant
constituted an automatic telephone dialing system (hereinafter “ATDS”). One of
the requirements under the TCPA is that in order for there to be a violation, the
caller must have used either an ATDS or an artificial or prerecorded voice. 47
U.S.C. § 277(b)(1)(A). Plaintiff argues that we should not consider this dispute,
and that instead, the defendants should be collaterally estopped from
“relitigating” the issue, as Allied’s aQrate system was determined to be an ATDS
12

system in an opinion by U.S. District Court Judge William J. Nealon in 2015. See
Morse v. Allied Interstate, LLC, 65 F. Supp. 3d 407 (M.D. Pa. 2014).
In situations where a plaintiff seeks to foreclose the defendant from
litigating an issue that the defendant has previously litigated unsuccessfully in an
action with another party, he or she may rely on the doctrine of offensive
collateral estoppel. Parklane Hoisery Co., Inc. v. Shore, 439 U.S. 322 (1979).
Because Judge Nealon granted summary judgment in 2015 on the exact
question of whether aQrate constituted an ATDS, plaintiff argues that it would be
a waste of judicial resources to relitigate. The parties agree that there have not
been any “material” or “major” changes made to the dialing software since
Morse. They have also agreed that they will use the deposition testimony that
was obtained in Morse in this case. (Doc. 38, Pl.’s Br. in Supp. of Pl.’s Cross Mot.
for Sum. Judg. at 17).
Trial courts have broad discretion to determine when offensive collateral
estoppel should be applied. Parklane Hoisery, 439 U.S. at 331. Offensive
collateral estoppel may be appropriate whenever: “(1) the identical issue was
previously adjudicated; (2) the issue was actually litigated; (3) the previous
determination was necessary to the decision; and (4) the party being precluded
from litigating the issue was fully represented in the prior action.” Jean Alexander
Cosmetics, Inc. v. L’Oreal USA Inc., 458 F.3d 244, 249 (3d Cir. 2006). Most
13

importantly, courts should consider whether the party being precluded “had a full
and fair opportunity to litigate the issue in question in the prior action, Sebrowski
v. Pittsburgh Press Co., 188 F.3d 163, 169 (3d Cir. 1999).
In response, the defendant argues that offensive collateral estoppel is not
appropriate here for two reasons. First, it directs our attention to Nieto v. Allied
Interstate, Inc., Civ. No. CCB-13-4395, 2014 WL 4980376 (Oct. 3, 2014), another
case in which Allied was sued for violating the TCPA. In Nieto, the court granted
Allied’s motion for summary judgment, finding that: (1) Allied did not use an
ATDS to call the plaintiff; and (2) that the number to which Allied made calls was
not assigned to a cellular telephone service. The defendant argues that because
the judgment in Nieto is inconsistent with the judgment in Morse, we should not
employ collateral estoppel. Second, the defendant argues that because Morse
was settled after the summary judgment decision, the defendant did not truly
have an opportunity to fully litigate the ATDS issue. More specifically, the
defendant claims that had the parties in Morse not settled, the defendant would
have appealed the court’s order on the basis of law where it was concluded that
the system used by Allied was an ATDS.
After a careful review, we agree with the plaintiff that collateral estoppel is
appropriate on the issue of whether Allied’s aQrate system is an ATDS. A review
of the Nieto case reveals that the outcome is not truly inconsistent with the
14

outcome in Morse. Although the two courts came to different conclusions as to
whether Allied used an ATDS, the facts in Nieto and Morse are significantly
different. First and foremost, there is no indication in the Nieto decision, which
was issued prior to the Morse decision, that the court was considering aQrate,
the system that was before the court in Morse and is also before us today. It is
clear from the record that Allied uses at least one other dialing system, namely
“Quallbar” software, (Doc. 34, Stipulations of Fact, ¶ 3), thus it would be purely
speculative to assume that the Nieto court determined that aQrate was an ATDS.
Further, the court in Nieto found that no genuine dispute existed as to
whether Allied used an ATDS because the pro se plaintiff failed to present
evidence to the contrary. The defendant presented an affidavit from Allied’s
Senior Vice President of Telephony, who declared that Allied did not use an
ATDS. Absent evidence presented by the plaintiff calling Allied’s affidavit into
question,6 the court found that the plaintiff could not prevail. We find that the
Nieto case was not an analysis of the system used by Allied, rather it was the
court’s ruling on a failure by the plaintiff to prosecute his case.

6

Plaintiff relied on what the court considered a “conclusory allegation” and “mere
speculation” to support his argument that Allied used an ATDS. He simply
suggested that in order for Allied to be competitive in the debt collection industry
and marketplace, Allied would have had to use an ATDS. Nieto, 2014 WL
4980376, at *3.
15

Conversely, the court in Morse did conduct a detailed analysis on the
identical issue of whether the aQrate system used by Allied constituted an ATDS.
The issue was critical in the granting of summary judgment for the plaintiff, as it
was the primary issue of contention between the parties. We also have no doubt
that Allied would have had every incentive to vigorously defend itself from
summary judgment, as the damages in Morse were in excess of the damages
before us today.
Allied does not dispute that it was fully represented during Morse, and, as
previously mentioned, has even agreed to use the deposition testimony from
Morse in the instant case, as its aQrate system has not been materially altered
since the Morse decision. Thus it appears as though the defendant is asking us
to review the exact same evidence that was presented before Judge Nealon in
2014, but come to the conclusion of its liking. This is precisely what the doctrine
of collateral estoppel is designed to prevent.
Lastly, Allied claims that it would have appealed Judge Nealon’s ruling had
the case not settled. For this reason, Allied claims that the issue was not fully and
fairly litigated. This argument is also unpersuasive and will not be afforded
weight. While that very well may have been Allied’s intention, Allied did in fact
settle, closing the case and waiving its right to appeal. See Morse v. Allied
Interstate, LLC, 3:13-CV-00625, Docs. 49, 50.
16

As such, we find that Allied had a full and fair opportunity in Morse to
litigate the issue of whether its aQrate system is an ATDS. See Sebrowski, 188
F.3d at 169 (emphasis added). Judge Nealon’s determination that the system is
an ATDS was a final and valid judgment. The law of collateral estoppel leads
inescapably to the conclusion that the defendant should be collaterally estopped
from relitigating this question. Summary judgment will be granted in favor of the
plaintiff on this issue.
III. Whether Allied Had Consent to Call Plaintiff After October 7, 2015
The parties agree that Synchrony Bank initially had consent to call plaintiff
on both her 9301 Landline Number and 3231 Cell Number regarding her Gap,
JCPenney, and American Eagle Outfitters credit cards. This consent stemmed
from plaintiff providing her phone number voluntarily to Synchrony Bank when
she opened the accounts. The parties further agree that by virtue of plaintiff
giving consent to Synchrony Bank, she also implicitly gave consent to Allied to
call her regarding her Gap and JCPenney accounts, the accounts that were
placed for collections.7 The parties dispute, however, whether Allied had consent
to call the plaintiff after October 7, 2015.

7

The law provides that prior consent originating with a creditor is transferred to a
third party debt collector because “[c]alls placed by a third party collector on
behalf of that creditor are treated as if the creditor itself placed the call.” In re
Rules and Regulations Interpreting Tel. Consumer Prot. Act of 1991, Request of
17

Plaintiff called Synchrony Bank on October 7, 2015, and revoked consent
for them to call her on any number regarding any account. The defendant argues
that plaintiff placed this call to a telephone number associated solely with her
American Eagle Outfitters account, and reached an agent from Synchrony Bank.
During the phone call, the Synchrony Bank agent reviewed details about
plaintiff’s American Eagle Outfitters account with her, including the account
balance, the application of interest, and methods of contacting her. Plaintiff
argues that from the moment she revoked consent with the Synchrony Bank
agent, neither Synchrony Bank nor the defendant had permission to call her.
Defendant argues that while Synchrony Bank may not have had permission to
call her, Allied retained plaintiff’s consent. The first issue, therefore, is whether
revocation of consent with a creditor transfers to a third party debt collector.
While the Third Circuit has not addressed this issue directly, the court has
considered cases dealing with the revocation of consent with respect to the
TCPA generally. We will look, therefore, to Gager v. Dell Financial Services, LLC,
727 F.3d 265 (3d Cir. 2013), for guidance. In Gager, the court held that although
the TCPA does not contain any language expressly allowing consumers the right
to revoke their prior express consent, such allowance is “consistent with the
basic common law principle that consent is revocable.” Id. at 270. Also consistent
ACA, Int’l for Clarification & Declaratory Ruling, 23 FCC Rcd. 559, 565 (Dec. 28,
2007).
18

with common law principles on revoking consent, the Federal Communications
Commission has weighed in that: “[c]onsumers have a right to revoke consent,
using any reasonable method including orally or in writing.” In re Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd.
7961, 7996-97, ¶ 64 (July 10, 2015).
After a careful review of the materials filed by each of the parties, we find
that as a general principle, it is reasonable for a plaintiff to revoke consent with a
third party debt collector by revoking consent with the original creditor. Here, the
defendant dedicates two pages in its brief citing to case law that stands for the
proposition that prior consent originating with a creditor is transferred to a third
party debt collector. (See Doc. 27, Def.’s Br. in Supp. at 8, 9). Yet, the defendant
vigorously argues that the revocation of that consent should not be transferred.
While this argument places the defendant in the best possible position—the
defendant doesn’t need plaintiff’s consent to call her over three hundred (300)
times because that consent comes from Synchrony Bank; but, if plaintiff wants to
revoke her consent, she needs to contact Allied directly, whom she may have
never had any interaction with—it is outwardly unfair to the plaintiff. In the
absence of a compelling argument to the contrary, we find that just as prior
consent originating with a creditor is transferred to a third party debt collector,

19

revocation originating with a creditor should also be transferred to a third party
debt collector.
Thus it would be crystal clear, for example, that had plaintiff called
Synchrony Bank and revoked consent to call her regarding her JCPenney
account, that revocation would be transferred to Allied, who has her JCPenney
account for collections. That, however, is not the situation we have before us,
which brings us to the defendant’s second argument. As noted above, the
defendant alleges that plaintiff was calling Synchrony Bank regarding her
American Eagle Outfitters account when she revoked consent, an account that
was never placed with Allied for collections. Defendant argues that it had no way
of knowing that plaintiff was attempting to revoke consent regarding her Gap and
JCPenney accounts,8 because at the time it had no connection with plaintiff’s
American Eagle Outfitters account.
At this juncture, we find that the question of whether it would be reasonable
for the plaintiff to revoke consent with Allied by revoking consent on an account
at Synchrony Bank that was never placed with Allied for collections is a question
for a factfinder. As we have before us cross-motions for summary judgment, the
parties have the burden to bring information in support of their positions to
8

Defendant alleges that Synchrony Bank did not contact the defendant and
advise them of plaintiff’s revocation. Plaintiff does not necessarily dispute this,
but argues that whether Synchrony Bank advised the defendant or not is
irrelevant.
20

establish that summary judgment is in fact appropriate. We find that the parties
have not met this burden, as a review of the record reveals that information that
may be critical to this determination is noticeably absent. We know very little
about how plaintiff’s accounts are set up with Synchrony Bank; whether there is a
connection between accounts when an account holder has more than one
account; and the process by which Synchrony Bank communicates with Allied
regarding accounts. Because, looking solely at the record as it stands, a
factfinder could reasonably find for either the plaintiff or the defendant, summary
judgment is not appropriate.
We find that the facts in this case need to be more thoroughly developed.
For these reasons, we will deny both plaintiff and defendant’s motions for
summary judgment on this issue.
IV. Whether Defendant Was Entitled to Continue Placing Calls to Plaintiff’s
9301 Landline Number After November 18, 2015
The final issue that we will address is whether the defendant was entitled to
continue placing calls to plaintiff’s 9301 Landline Number after it was ported to a
cellular service on November 18, 2015. The TCPA prohibits persons from making
calls without the prior express consent of the called party using an ATDS 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. §
21

227(b)(1)(A)(iii). The parties agree that based on this statute, Allied did not need
plaintiff’s prior express consent to contact plaintiff on her 9301 Landline Number
while it was indeed affiliated with a landline phone. They therefore agree that
plaintiff’s October 7, 2015, phone call to Synchrony Bank revoking consent did
not affect Allied’s ability to continue to call plaintiff’s 9301 Landline Number—at
least until November 18, 2015.
Plaintiff alleges that on November 18, 20159, she ported her 9301 Landline
Number into a cellular service network. She argues that once her 9301 Landline
Number was transported to a cellular service network, the defendant was no
longer permitted to call her on this number because she revoked consent on cell
phone calls on October 7, 2015.10 In response, the defendant argues that
plaintiff’s October 7, 2015, revocation could not possibly apply to a number that,
at the time, was associated with a landline but later ported to a cellular network.
The defendant argues that once plaintiff ported her 9301 Landline Number to a
cellular network, plaintiff needed to call Allied directly for an effective revocation.

9

Plaintiff alleges that she made the decision to port her telephone number
sometime prior to the summer of 2015. She admits, however, that the number
was not successfully ported until November 18, 2015. (Doc. 35, Pl.’s SOF ¶ 72).
10

It appears as though the plaintiff, while not raising the argument directly, is
arguing that the TCPA is a strict liability statute. Absent any basis in law for this
argument, we decline to view it as such.
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There is no dispute that after the number was ported in November, plaintiff did
not attempt to revoke consent to be contacted.
We find that summary judgment is inappropriate at this stage. A review of
the record reveals that the parties do not agree on material issues of fact in
regard to this issue. A fact is material when it might affect the outcome of the suit
under the governing law. International Raw Materials, 898 F.2d at 949. First and
foremost, whether the plaintiff actually ported her 9301 Landline Number to a
cellular network is pivotal. It appears as though the parties do not agree that this
event occurred, and dispute the timing of it. It also appears as though, as in the
section above, there are many questions that remain unanswered after a
thorough review of the record. For example, how would the defendant possibly
know that that the plaintiff’s number was ported—and does that matter? Did
Synchrony Bank, if it knew that plaintiff’s number had been ported, have an
obligation to tell Allied? These are questions that we find would be more
appropriately answered by a factfinder after further factual developments. As
such, will deny both the plaintiff and the defendant’s motions for summary
judgment.
Conclusion
Accordingly, both plaintiff and defendant’s motions for summary judgment
will be denied in part and granted in part. Summary judgment will be granted for
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the plaintiff on issue of standing. Summary judgment will be granted for the
plaintiff on the issue of whether Allied’s aQrate system qualifies as an ATDS, and
we will employ the use of offensive collateral estoppel to prevent this question
from being relitigated. For the purposes of this case, aQrate will be considered
an ATDS. We will deny both the plaintiff and the defendant’s motions for
summary judgment on the issues of whether the defendant had consent to call
the plaintiff after her alleged October 7, 2015 revocation and whether the
defendant was entitled to continue placing calls to the plaintiff’s 9301 Landline
Number after November 18, 2015. An appropriate order follows.

Date: February 12, 2018

s/ James M. Munley_______
JUDGE JAMES M. MUNLEY
United States District Court

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