United States District Court, D. Connecticut
RULING AND ORDER
N. Chatigny United States District Judge
Jennifer Harris brings this action under the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§227, claiming that defendant Navient Solutions, LLC
(“Navient”), repeatedly called her using an
automatic telephone dialing system (“ATDS”) after
she revoked her consent to receive such calls. Navient seeks
summary judgment on the ground that plaintiff could not
unilaterally revoke her consent to receive ATDS calls because
she granted consent in a contract. I agree and therefore
grant the motion.
is the servicer for several student loans plaintiff obtained
between 2006 and 2009. In promissory notes she signed to
secure the loans, she provided her telephone number and
agreed to notify the defendant if her number changed. She
also agreed to the following clauses that are particularly
This Note may be modified only if you put the modification in
writing and the modification is agreed to by any borrower or
cosigner. . .
I understand that you may use automated telephone dialing
equipment or an artificial or prerecorded voice message to
contact me in connection with this loan or loan application.
You may contact me at any telephone number I provide in this
application or I provide in the future, even if that number
is a cellular telephone number.
2012 and 2014, Navient frequently used ATDS to contact
plaintiff's cell phone. Plaintiff has testified that,
sometime in December 2012, she began telling Navient's
representatives to “stop calling [her], ” and she
told them to stop calling her “many, many times”
thereafter. Despite these requests, she continued to receive
ATDS calls until August 8, 2014, when her attorney sent a
letter to Navient stating that plaintiff had revoked
authorization to call her cell phone.
judgment may be granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). To avoid summary judgment, the non-moving
party must point to evidence that would permit a jury to
return a verdict in his or her favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). In determining
whether the moving party is entitled to judgment as a matter
of law, a court must review all the evidence in the record in
the light most favorable to the opposing party. Id.
TCPA prohibits making “any call using an [ATDS] or
prerecorded voice to any telephone number assigned to a . . .
cellular telephone” for non-emergency purposes. 47
U.S.C. § 227(b)(1)(A)(iii). The caller is strictly
liable for statutory damages unless it proves that the
plaintiff gave “prior express consent” to ATDS
calls. Id. at §§ 227(b)(3), (b)(1)(A);
see Levy v. Receivables Performance Mgmt., LLC, 972
F.Supp.2d 409, 417 (E.D.N.Y. 2013) (stating that prior
express consent is an affirmative defense under the TCPA).
Second Circuit has held that “the TCPA does not permit
a party who agrees to be contacted as part of a bargained-for
exchange to unilaterally revoke that consent.” See
Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d
Cir. 2017), as amended (Aug. 21, 2017). It is
undisputed that plaintiff consented to receiving ATDS calls
when she signed her promissory notes. This fact is
dispositive under Reyes.
argues that extrinsic evidence regarding the meaning of the
consent clause should be considered because the clause is
ambiguous. In general, “[w]hen only one interpretation
of a contract is possible, the court need not look outside
the four corners of the contract.” Parisi v.
Parisi, 315 Conn. 370, 383, 107 A.3d 920, 929 (2015)
(quotation omitted). “Extrinsic evidence is always
admissible, however, to explain an ambiguity appearing in the
claims that the consent clause is ambiguous because it can be
interpreted to provide only “initial” consent to
receive ATDS calls. I disagree. The clause includes no
temporal limitations and contemplates ATDS calls in the
future: “You may contact me at any ...