- TCPA Hot Issues: If Consent is Not Forever, What Constitutes Revocation?
- May 27, 2014 | Authors: Wilson G. Barmeyer; Thomas M. Byrne; Ellen M. Dunn; Lewis S. Wiener
- Law Firms: Sutherland Asbill & Brennan LLP - Washington Office ; Sutherland Asbill & Brennan LLP - Atlanta Office ; Sutherland Asbill & Brennan LLP - Washington Office ; Sutherland Asbill & Brennan LLP - New York Office ; Sutherland Asbill & Brennan LLP - Washington Office
One of the hot issues in pending litigation under the Telephone Consumer Protection Act (TCPA) is whether a consumer can revoke consent to receive calls on a cell phone. A number of courts have recently held that a consumer can revoke consent to be contacted by cell phone. Generally, the TCPA requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but the statute is silent on the right to revoke. If consent is not forever, that begs the question: What constitutes valid revocation? Several courts have recently addressed this issue under a variety of scenarios.
Can Prior Express Consent Be Revoked?
There is a split in authority on whether consent can be revoked under the TCPA. A number of courts are trending toward the conclusion that consent is revocable.
The Third Circuit was the first federal appellate court to address this issue. In Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013), the court held that a consumer has a right to revoke consent notwithstanding the absence of a statutory provision specifically authorizing revocation. The court reasoned that the common law concept of consent should be applied, and that a right to revoke is not inconsistent with prior Federal Communications Commission (FCC) decisions. Accordingly, silence in the statute should be interpreted in favor of consumers, consistent with the overall judicial trend toward interpreting the TCPA in consumers’ favor. The court also stated that there should not be a temporal restriction on the right to revoke. After Gager, most courts appear to be following the Third Circuit’s lead.
Prior to Gager, however, a number of courts issued decisions holding that the lack of a revocation provision in the TCPA meant that the right to revoke does not exist, and these cases remain good law in other jurisdictions. See Kenny v. Mercantile Adjustment Bureau, LLC, 10-CV-1010, 2013 WL 1855782 (W.D.N.Y. May 1, 2013); Saunders v. NCO Fin. Sys., Inc., 910 F. Supp. 2d 464, 468-69 (E.D.N.Y. 2012).
What Constitutes Revocation?
If a consumer has a right to revoke consent, what must the consumer do to exercise that right? In Gager, the plaintiff sent a letter attempting to revoke her consent in writing. While the parties disputed whether there was a right to revoke, there was no factual dispute about whether the written letter was sufficient to trigger the alleged right. Courts following the Gager rule on revocation are now confronting a variety of factual situations where the consumer’s exercise of the right to revoke is less clear cut.
The Eleventh Circuit recently addressed revocation in a case that presented a factual issue for a jury on the issue of the sufficiency of oral revocation. Osorio v. State Farm Bank, F.S.B., &under;&under; F.3d &under;&under;, 2014 WL 1258023 (11th Cir. Mar. 28, 2014). The case involved automated debt collection calls made by a creditor’s agent. On the legal question of whether there is a right to revoke consent, the court followed Gager and reasoned that “the TCPA’s silence regarding the means of providing or revoking consent [implies] that Congress sought to incorporate the common law concept of consent.” The court also stated that “[c]ommon-law notions of consent generally allow oral revocation.” The case presented a factual issue for a jury to to decide, however, because the plaintiff claimed that he told the defendant to “stop calling” twice, while the defendant said he did no such thing. The court held that “[t]his is exactly the kind of factual dispute that cannot properly be resolved on summary judgment.” The Eleventh Circuit has remanded the case to the district court for further proceedings.
A Wisconsin federal district court, facing a different set of facts, recently granted summary judgment in favor of a TCPA defendant, holding as a matter of law that the plaintiff had not revoked his consent through a generalized voicemail greeting. Andersen v. Harris & Harris, Ltd., 13-cv-867, 2014 WL 1600575 (E.D. Wis. Apr. 21, 2014). The defendant allegedly made 163 autodialed collections calls to the plaintiff’s cell phone and left prerecorded voicemail messages. The plaintiff claimed that he revoked his consent to be contacted by cell phone through his voicemail greeting, which stated that “any and all automated calls and automated voicemail messages to this cell phone are strictly forbidden and any and all consent . . . has been and is hereby revoked.” The court held that “even if consent is revocable, [the plaintiff’s] voicemail is not enough to have done so,” reasoning that the plaintiff’s argument would create a “totally unworkable rule” that would “undermine” the entire notion of consent by creating a “trap” for all debt collectors that use autodialers.
In a third case, a Florida district court held that a plaintiff adequately pleaded a violation of the TCPA by alleging that he sent a text message revoking consent, which the entity sending the text messages failed to honor. According to the complaint, the plaintiff received instructions to send the message “STOP ALL” if he wished to stop receiving text messages from the defendant. He further alleged that he sent the message “STOP ALL” and thereby “took the steps [the defendant] had established for consumers to communicate a desire to stop receiving messages.” On these facts, the court denied a motion to dismiss, holding that the plaintiff had adequately alleged that he revoked his consent to receive text messages and that messages postdating the revocation were sent without his consent. Legg v. Voice Media Grp., Inc., 13-cv-62044, 2014 WL 29594 (S.D. Fla. Jan. 3, 2014).
The issues of consent and revocation will continue to develop in TCPA litigation. The issue of revocation arises frequently, and there is still a split in authority on whether consent can be revoked. More broadly under the TCPA, companies are continuing to adjust to new FCC rules that went into effect in late 2013, which set a high standard for the type of consent required for marketing calls made to cell phones. With the new FCC rules and ongoing litigation risk, it would be prudent for companies to attempt to obtain written consent where appropriate and maintain adequate records of the specific details of that consent.