On August 11, 2017, a federal court judge dismissed a Telephone Consumer Protection Act (TCPA) case filed against Navient Solutions, Inc. by determining: 1) that the plaintiff had consented to receive calls on her cell phone; and 2) that 2016 Federal Communications Commission (FCC) regulations (In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act, 31 FCC Rcd. 9074, 9104 (2016) limiting the number of calls allowed in connection with a federal student loan did not apply, since the regulation was issued after the lawsuit was filed.
The case is Weaver v. Navient Solutions, Inc., (Case No 5:16-cv-1304, U.S.D.C., Northern District of Ohio, Eastern Division). A copy of the court’s Memorandum Opinion can be found here.
Plaintiff had filed a single count complaint alleging that Navient Solutions, Inc. (NSI) violated the TCPA by repeatedly making calls to her cell phone using an automatic telephone dialing system (ATDS). DefendantNSI had filed a motion for summary judgment.
Editor’s Note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.
Plaintiff, Lacey Weaver took out two student loans under the Federal Family Education Loan (“FFEL”) Program (one on June 2, 2004 and the other on March 24, 2008) to finance her education at Brown Mackie College (2004-2007) and Stark State College (2009-2010). Both loans were serviced by NSI.
Weaver made no payments on the loans. As a result of her default, NSI telephoned plaintiff at the phone number she had provided – a cell phone number ending in -9221 (the “9221 number”).
NSI’s first call to the 9221 number was on July 25, 2014. Per the court’s order, in relevant part, the conversation went as follows:
NSI: Is this the number we can call you – 9221?
NSI: Is it a landline or a cell phone for the 9221?
NSI: So let me just read to you the disclosure for a cell phone. I just need permission. Ok, so to help contact you more efficiently, may Sallie Mae Bank and Navient and their respective subsidiaries, affiliates, and agents . . . contact you at this number using an autodialer or prerecorded messages regarding your current or future accounts?
On or about December 29, 2014, NSI called Weaver again at the 9221 number. Weaver again confirmed the 9221 number and consented to autodialer calls:
NSI: You do have this phone number, um, (xxx) xxx-9221. Since it is a cell phone, I’m going to read a disclosure. I’ll need your approval. To help us contact you more efficiently, may Sallie Mae Bank and Navient and their respective subsidiaries, affiliates, and agents contact you at this number using an autodialer or prerecorded messages regarding your current or future accounts? Are we allowed?
Finally, on or about April 24, 2015, NSI called Weaver a third time at the 9221 number, once again confirming the number:
NSI: Aside from this phone number that ends in 9221, do you have any other phone number you’d want to add to your file?
Weaver also gave her consent in writing, on or about October 20, 2015, when she signed an Unemployment Deferment Request in connection with her student loans. After identifying her primary phone number as the 9221 number, she signed the document, which included the following statement:
“I authorize the entity to which I submit this request (i.e., the school, the lender, the guaranty agency, the U.S. Department of Education, and their respective agents and contractors) to contact me regarding my request or my loan(s), including repayment of my loan(s), at the number that I provide on this form or any future number that I provide for my cellular telephone or other wireless device using automated telephone dialing equipment or artificial or prerecorded voice or text messages.”
The Court’s Decision
The Memorandum Opinion was written by the Honorable Sara Lioi, United States District Court Judge.
Judge Lioi began her analysis with a review of the relevant TCPA provisions:
“The TCPA makes it “unlawful for any person . . . (A) 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 – . . . (iii) to any telephone number assigned to a . . . cellular telephone service, . . . unless such call is made solely to collect a debt owed to or guaranteed by the United. States[.]” 47 U.S.C. § 227(b)(1)(A)(iii).”
NSI argued in its motion that Weaver’s claim that NSI violated the TCPA fails as a matter of law because it falls within the exception in the statute, quoted above. Plaintiff expressly concedes that she took out loans to finance her education, and the promissory notes themselves are identified as loans under the Federal Family Education Loan (“FFEL”) Program. Therefore, the loans are “debt[s] owed to or guaranteed by the United States.”
Plaintiff argued that the FCC limited the number of calls that could be made on these loans to a maximum of three calls within a thirty-day period, and zero calls following a request by the debtor for no further calls.
But, Judge Lioi noted:
“The problem with plaintiff’s argument is that this regulation was not adopted until August 2, 2016, almost three months after this lawsuit was filed, more than a year after the final telephone call allegedly made by NSI on April 24, 2015, and long after plaintiff claims she first told NSI to stop calling. Plaintiff admits that this regulation was enacted in 2016, but she nonetheless argues that it applies, without reference to any case law that would make the regulation retroactive to her situation.”
In conclusion, Judg Lioi wrote:
“Plaintiff’s claim fails as a matter of law, based on the material facts that plaintiff admits are undisputed, because it is encompassed by the express exception in the TCPA and because the later-enacted regulation cited by plaintiff cannot be applied retroactively to the facts herein. Therefore, defendant is entitled to summary judgment and dismissal.”
In a footnote on page 5 of the opinion Judge Lioi also noted the following:
“Defendant makes two additional arguments (that plaintiff consented to calls and did not revoke the consent, and that there is no evidence that any violation of the TCPA was “knowing or willful” within the meaning of 47 U.S.C. § 227(b)(3)(C)). Plaintiff asserts that she revoked her consent several times, and she has submitted a new affidavit with her opposition brief attempting to establish that fact. Defendant challenges the affidavit as inadmissible evidence that contradicts plaintiff’s deposition testimony. Given the Court’s holding on the applicability of the TCPA, these issues need not be addressed. “
The court’s opinion was a short, concise and no nonsense resolution to this matter. Judge Lioi determined that the calls fit directly into the exception included in the TCPA. Judge Lioi also noted in her footnote that she did not need to decide the issue of consent and revocation of consent. But, based on the facts outlined by the judge, the consent was clear and unambiguous. It came orally and it came in writing. Finally, per the footnote referenced above, plaintiff’s argument that she revoked consent was contrary to her deposition testimony.