|September 26, 2013|
Previously published on September 16, 2013
The U.S. Court of Appeals for the Third Circuit recently became the first appellate court to hold that the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 et al., permits a consumer to revoke prior express consent to be contacted on his or her cellular telephone line via an automatic telephone dialing system (ATDS). Gager v. Dell Financial Services, LLC, --- F.3d ----, 2013 WL 4463305 (3rd Cir.) The Third Circuit held that revocation may be done at any time after prior express consent is given.
In Gager, plaintiff debtor disclosed her phone number to defendant creditor on an application for credit in order to finance the purchase of several thousand dollars of computer equipment. In doing so, the debtor identified the phone number as her home telephone number but did not reveal it as belonging to a cellular phone line as was the case. When the debtor failed to make mandatory payments towards the credit account, the creditor attempted to contact her multiple times using an ATDS on the phone number she had provided. The debtor wrote to the creditor, identified the phone number in her letter, and requested that the creditor stop calling the number regarding the credit account, but still did not disclose to the creditor that it had been calling a cellular phone line. The creditor continued to call the debtor on the same phone number via an ATDS, and the debtor subsequently brought her suit under the TCPA. The district court dismissed debtor's complaint, finding that the TCPA did not permit revocation of prior express consent and that while the debtor could have requested that an ATDS not be used to contact her, that limitation must have been requested at the time the debtor disclosed her phone number.
The Third Circuit reversed, basing its decision on three points. First, the court found the concept of prior express consent under the TCPA to be analogous to consent under common law, and determined that because consent may be revoked under the latter it should be revocable under the TCPA, too. Second, while the Third Circuit acknowledged that the TCPA is silent on revocation of prior express consent, it concluded that such silence should be construed in favor of permitting revocation. This is because, as the court found, the statute's purpose is to protect consumers, and if its intent was to limit revoking prior express consent Congress would have expressly indicated that. Third, the Federal Communications Commission, which Congress authorized to implement rules and regulations regarding the TCPA, had issued a decision in a separate matter following the district court's dismissal of the debtor's complaint that stated that in the context of text messaging a consumer may revoke prior express consent to receive further messages at any point after it is given. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc., 27 FCC Rcd. 15391, 15397 § 11 n.47 (Nov. 26, 2012). The Third Circuit was not persuaded that the debtor failed to identify the phone number that she provided to the creditor as belonging to a cellular phone line, finding that callers have a continuing responsibility to confirm the phone numbers being called.
While several issues remain unresolved following this decision - such as whether revocation of prior express consent must be given in writing to be effective - it underscores the importance for both creditors and collection agencies to have procedures in place for scrubbing the numbers they call using an ATDS and for addressing verbal and written requests to stop calling.
Gager v. Dell Financial Services, LLC, --- F.3d ----, 2013 WL 4463305 (3rd Cir.)