FRANKLIN DEFEATS ANOTHER TCPA SUMMARY JUDGEMENT: Questions Still Lie About Consent Revocation And The Use of Prerecorded Calls

Defendant Hollis Cobb Associates (HCA) lost a motion for summary judgement against serial plaintiff Ricky Franklin on September 29, 2022.

The events of this case span over 7 years. So, let’s start from the beginning.

The year was 2016 which was an interesting year for all of us really. Ricky Franklin found himself at a hospital signing an acknowledgement form for medical services. Now, this signature in 2016 is how Franklin found himself filing against HCA years later in 2021. The signing of this acknowledgement is where he provided his phone number and how the creditor and its affiliates received consent to contact Franklin regarding the services or payments for the services. The consent allowed the contact to be done by ATDS and prerecorded calls.

Fast forward to 2017. In January 2017, Franklin claims he sent a letter to the hospital saying he is to only being contacted via mail. He also claims that he called the hospital in February on two occasions revoking this consent over. Later that year, in July, Franklin received a call on the same number he provided on the consent form from HCA regarding his alleged debt to the hospital. More calls were made later that year—between July 13 and August 24. The number of calls and whether an artificial or prerecorded message was used is disputed by the parties. Directly after, on August 25th, Franklin sent HCA a demand letter alleging TCPA violations and threatening suit. Thereafter, HCA shut down Franklin’s account meaning it would stop calling the number that was provided on consent in 2016.

In May of 2021, Franklin filed a complaint—a few months before the four-year prescriptive period elapsed. He alleges that HCA violated the TCPA by calling using an ATDS or an artificial, or prerecorded, voice.

After discovery was closed, HCA moved for summary judgement in February of 2022.

To have a summary judgement granted, there needs to be no genuine dispute as to any material fact. Both parties agree at least some calls were made, and none fall into the “emergency purpose” exception to the TCPA. They dispute the use of an ATDS, but the Court sided with HCA here that predictive dialers were not enough based on Duguid. However, prerecorded calls or calls using an artificial voice are separate TCPA prohibitions from use of an ATDS.

Franklin’s claim is that HCA called him 11 times with the “same identical, automated message,” and HCA produced no evidence disproving this. This is a genuine dispute of material fact. Funny enough, the case sited by the Court here is another case filed by Franklin. In fact, are 11 cases cited in this opinion, and 2 of those belong to Franklin.

Now, the other genuine dispute of material fact is whether consent was revoked. It is not disputed that consent was given in 2016, but Franklin claims that he revoked this consent in 2017 with the letter and two phone calls. These revocations were not challenged by HCA until it’s reply. Therefore, the challenge cannot be considered when the defendant was on notice of the fact before filing the summary judgement.

In short, what caused the denial of HCA’s summary judgement was genuine disputes of material facts about 1) the use of prerecorded calls and 2) whether consent was revoked by Franklin.

HCA was not granted leave to file supplemental material due to its failure to establish good cause for not submitting the materials in its original motion. HCA was granted an extension in which to file its reply brief, but it does not seem likely this is going to help based on the above.