The Telephone Consumer Protection Act (TCPA ) does not permit a debtor to revoke consent given to a creditor for autodialed or prerecorded calls from the creditor to the debtor’s cellular telephone number, a federal judge in Pennsylvania has ruled.
The TCPA prohibits autodialed or prerecorded non-emergency calls to cell phone numbers unless the call is made with “the prior express consent of the called party.” In his May 29, 2012, decision in Gager v. Dell Financial Services, U.S. District Judge Robert T. Mariani of the Middle District of Pennsylvania held that a letter sent by the plaintiff asking the defendant to cease calling her cell phone number after she became delinquent on her account did not revoke her “prior express consent” given to the defendant to contact her at her cell phone number.
The debtor had provided her cell phone number on a separate form at the time she completed her application for credit to purchase computer equipment. Since the debtor did not have a land line, she supplied her cell phone number in response to the form’s request for a “house phone” number.
In arguing that the TCPA permitted her to withdraw her consent for the calls, the plaintiff pointed to the Federal Communications Commission’s interpretation of the “prior express consent” requirement. In a 2008 Declaratory Ruling, the FCC found that, by giving his or her cell phone number to a creditor as part of a credit application, a consumer provides “prior express consent” to be contacted at that number regarding the debt. The 2008 ruling referenced the 1992 order in which the FCC first adopted rules implementing the TCPA and in which the FCC stated that “absent instructions to the contrary,” a consumer’s knowing release of a phone number constitutes permission to be called at that number.
The plaintiff argued that her letter asking the defendant not to call her constituted “instructions to the contrary” that revoked her prior consent.
Judge Mariani rejected the plaintiff’s argument, finding that the phrase “absent instructions to the contrary” did not provide “a method of revocation” of consent, but instead referred to limitations on a creditor’s use of a cell phone number that the consumer establishes concurrently with providing the number to the creditor.
He also distinguished several cases from other federal district courts involving claims under both the Fair Debt Collection Practices Act (FDCPA) and the TCPA in which judges had construed the TCPA to allow written revocation of consent by relying on a provision of the FDCPA that allows a consumer to block debt collector communications by providing written notice.
Noting that those cases might apply if the defendant were subject to the FDCPA, Judge Mariani found them to be “irrelevant and inapposite” because the defendant was acting in its own name to collect its own debt and therefore was not a “debt collector” under the FDCPA. Judge Mariani also refused to follow other federal district court cases that have held that the TCPA permits oral revocation of consent.
We continue to see a high volume of class actions alleging TCPA violations. In part, this is because the penalties are draconian. Violations can yield damages of $500 per violation or actual damages—whichever is greater—with a tripling of damages for willful violations and unlimited class action liability.
Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending all manner of TCPA lawsuits, the group has counseled a number of clients on establishing autodialing and monitoring protocols.
Ballard Spahr lawyers also regularly consult with clients engaged in consumer debt collection on compliance with the FDCPA and state debt collection laws. As summarized in a prior legal alert, the Consumer Financial Protection Bureau has issued a proposal to supervise certain debt collectors and debt buyers as “larger participants.” The CFPB will soon be examining debt collectors and debt buyers who qualify as “larger participants” or who act as service providers to entities supervised by the CFPB, such as payday and private student loan lenders. We are currently conducting compliance reviews for debt collectors and debt buyers in anticipation of their first CFPB examinations.
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