Express consent to be called using an autodialer can be revoked at any time, says the U.S. Court of Appeals for the Third Circuit. On August 22, 2013, in Gager v. Dell Financial Services, LLC, the Court attacked a common understanding of the Telephone Consumer Protection Act among many creditors and debt collectors: Once a debtor provides his cell phone number to you, you may call him at that number using an autodialer or prerecorded messaging for as long as the debt is owing.
The facts are these. Ashley Gager gave Dell Computer her cell phone number when she applied for online credit to buy a new computer. When she got behind on payments, Dell used an autodialer to call her to see when she would bring the account current. Ms. Gager eventually sent a letter to Dell saying stop calling. Dell disregarded the letter and continued to call approximately 40 times during a three-week period. Ms. Gager sued under the TCPA and the trial court dismissed her case, saying once she gave consent it could not be revoked.
The Court of Appeals reversed, holding that consent could be revoked at any time, noting that there is no special exception for the debtor/creditor relationship. The Court based its decision on these three factors:
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Consent can be revoked under common law
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Any ambiguity in the TCPA should be resolved in favor of the consumer
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A recent FCC decision on another topic suggested revocation was possible
The Court emphasized that there is nothing that prohibits Dell from continuing to call Ms. Gager; it just has to dial manually when it does so, unless she had also provided a cease-and-desist request pursuant to any applicable state debt collection laws.
The Gager decision will have serious consequences. It continues the trend of courts chipping away at long-standing notions of prior express consent in the debt-collection context. The consequences for any company that contacts its customers on their cell phones using an autodialer or prerecorded voice could be devastating because TCPA violations carry penalties of $500 to $1,500 per call. Damages can run into the millions, if not billions, in class cases. The TCPA is the new darling of the plaintiffs’ class action bar, and the Gager decision will likely result another uptick in TCPA cases.
While the Third Circuit decision is only controlling in Delaware, New Jersey, and Pennsylvania, it should be considered a harbinger of decisions to come in other places. Foley will continue to monitor developments and will issue further Legal News Alerts on this topic.
