• Don’t Call Me Maybe—TCPA Consent Can Be Partially Revoked
  • August 18, 2017 | Author: Valerie Strong Sanders
  • Law Firm: Eversheds Sutherland (US) LLP - Atlanta Office
  • The Eleventh Circuit has held that the TCPA permits a consumer to partially revoke her consent to be called. Schweitzer v. Comenity Bank, 2017 WL 3429381 (11th Cir. Aug. 10, 2017).

    Emily Schweitzer had a past-due credit card account with Comenity Bank. The bank called her cell phone (the number which she had provided in her application) using an autodialer. In October 2013, during a conversation with a bank representative, Schweitzer said, “if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.” The bank representative replied that the calls were dialed by a computer, and “[w]e can’t stop the phone calls like that.”

    Five months later, Schweitzer asked a bank representative, “Can you just please stop calling?” After that, the bank stopped placing autodialed calls to Schweitzer.

    Schweitzer brought an action against the bank, claiming that she had revoked her consent to be called in the October conversation and that subsequent calls violated the TCPA. The district court granted the bank’s motion for summary judgment, finding that until the second conversation, the bank “did not know and should not have had reason to know that [Schweitzer] wanted no further calls.”

    The Eleventh Circuit, in an opinion written by Judge Jordan and joined by Judge Jill Pryor and Judge Coogler visiting from the Northern District of Alabama, reversed. The court began its analysis by citing Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), in which the court had applied common-law principles of consent to hold that consent to be called could be orally revoked. At common law, the court continued, consent could be limited. And limited consent figures elsewhere in federal law, including in Fourth Amendment jurisprudence. “We therefore conclude that the TCPA allows a consumer to provide limited, i.e., restricted, consent for the receipt of automated calls. It follows that unlimited consent, once given, can also be partially revoked.”

    The bank argued that language in a declaratory FCC ruling, to the effect that “consumers may revoke consent in any manner that clearly expresses a desire not to receive further messages”—supported the bank’s argument that consent was an all-or-nothing proposition. The court rejected the argument, noting that the FCC ruling confirmed the applicability of common-law principles and that the quote at issue, read in context, did not support the bank’s argument.

    The Eleventh Circuit further held, with a nod to Carly Rae Jepsen’s song Call Me Maybe, that it was for a jury to decide whether Schweitzer’s statements during the October call were, in fact, sufficiently unequivocal to constitute a partial revocation of consent.