CONSENT BLUES: New TCPA Case Shows How Tricky it Can be to Prove Up Consent For Calls

Bunch of TCPA cases piling up on my desk to report on. Busy–but happy Czar– right now.

A few of these are pretty interesting.

In Foster v. National Recovery Agency, 17-CV-6-LJV-HKS, 2023 WL 2612496 (W.D. N.Y. March 23, 2023), for instance, the Court determined neither side had met their burden of proof on cross summary judgment motions related to the number of calls that were made. They disputed, for instance, how many calls were made using a prerecorded voice versus other technology. So the issue was headed to the jury.

But the Defendant also sought judgment to enforce a consent record, and this part was interesting to me. The Defendant was a debt collector calling about a medical debt. The number at issue had purportedly been provided to the hospital where Plaintiff had sought care. But all Defendant could produce was the intake form with the phone number- Defendant was unable to actually authenticate the record or connect it back to the Plaintiff.

Folks forget that the rules of evidence in federal court do not just allow a party to lob a record at the court and expect the court to accept its contents. While a written consent record is technically not hearsay–it is legally operative conduct and not submitted for the truth of the record–it still must be authenticated as valid by a witness with personal knowledge. Here Defendant could not make that showing.

And even if the consent record is authenticated as an actual document purporting to be what it appears to be, a Plaintiff may still deny having signed the record–as Plaintiff did here–which raises a question of fact. Maybe the hospital admissions team forged the record and simply lied to the debt collector! Seems unlikely, but in Court the jury–and not the judge–will need to make that determination.

Consent issues permeate lead generation TCPA cases, of course, where a caller relies on the accuracy of a record sold to it by a third-party. But, as Foster shows, this issue is not limited to lead generation cases.

If you have questions about how to get YOUR consent into evidence, give the Czar a call. I’ve done it a couple of times. 😉


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