TCPA Hot Issues: If Consent is Not Forever, What Constitutes Revocation?

by Eversheds Sutherland (US) LLP
Contact

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., __ F.3d __, 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).

Conclusion

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. (Click here for Sutherland’s Legal Alert on the new FCC rules.) 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.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Eversheds Sutherland (US) LLP | Attorney Advertising

Written by:

Eversheds Sutherland (US) LLP
Contact
more
less

Eversheds Sutherland (US) LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.