Joshua Brenner v. American Education Services

United States Court of Appeals
For the Eighth Circuit
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No. 14-1340
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Joshua Seth Brenner
lllllllllllllllllllll Plaintiff - Appellant
v.
American Education Services (AES),
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 3, 2014
Filed: September 26, 2014
[Unpublished]
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Joshua Seth Brenner appeals the district court’s adverse grant of summary
judgment in his action against American Education Services (AES), brought pursuant
to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. On de novo
review, this court reverses and remands for further proceedings. See Butler v.
Crittendon Cnty., Ark., 708 F.3d 1044, 1048-49 (8th Cir. 2013).
Brenner complained that AES violated the TCPA when it repeatedly called his
cell phone number about his student loan debt, using an automatic telephone dialing
system and prerecorded or artificial voice, without his consent, and continued to make
such calls after he provided written notice to AES in July 2012, to stop calling him
about his loan debt. The district court granted summary judgment to AES, finding
that Brenner voluntarily provided his cell phone number to AES on numerous
occasions, and expressly agreed to receive the type of calls made. This court agrees
that Brenner gave express consent to receive calls from AES to his cell phone number
by providing that number on multiple forbearance requests and he specifically
authorized AES to use an automatic telephone dialing system to contact him at that
number before the complained-of calls began. See Meyer v. Portfolio Recovery
Assocs., LLC, 707 F.3d 1036, 1042 (9th Cir. 2012) (prior express consent is consent
to call particular telephone number in connection with particular debt that is given
before call in question is placed).
The district court did not address Brenner’s argument that he revoked his
consent in July 2012. It is undisputed that AES continued to make calls to Brenner’s
cell phone after this date. Thus, if Brenner effectively revoked his consent, summary
judgment was not proper. While this court has not yet addressed the issue of
revocation, two other circuit courts have concluded that prior consent to call one’s
cell phone may be revoked under the TCPA. See Osorio v. State Farm Bank, F.S.B.,
746 F.3d 1242, 1255-56 (11th Cir. 2014); Gager v. Dell Fin. Servs., LLC, 727 F.3d
265, 270-72 (3d Cir. 2013).
The grant of summary judgment for AES is vacated and the case is remanded
to the district court to consider whether Brenner’s evidence supporting his contention
that he revoked consent was sufficient to preclude summary judgment for AES, and
for further proceedings as appropriate.
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