Eleventh Circuit Recognizes Partial Consent Revocation under the TCPA

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On August 10, in Schweitzer v. Comenity Bank, No. 16-10498 (Aug. 10, 2017), a panel of the Eleventh Circuit expanded liability for companies under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (TCPA). Building on the holding in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014), that the TCPA allows for the oral revocation of consent, the Court held that the TCPA also “permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system.”  Schweitzer, No. 16-10498, at 2.

Procedural History

Rebecca Schweitzer brought a case against Comenity Bank for violations of the TCPA.  She alleged that she had told Comenity to stop calling her in the morning and while she was at work.  According to her allegations, Comenity did not stop calling her until she told an employee five months later to stop calling her completely.  She claimed that the calls from Comenity made during the time she asked Comenity not to call were a violation of the TCPA because she had revoked her consent to be called.  The district court found in favor of Comenity, holding that: (1) Comenity did not know that Ms. Schweitzer did not want the bank to call her, (2) she did not define the times she did not want to be called, and (3) no reasonable jury could find that she had revoked consent.  Ms. Schweitzer appealed, and on August 10th the Eleventh Circuit reversed the lower court’s decision.

The Legal Argument for Partial Revocation of Consent

The Eleventh Circuit found Comenity’s legal argument that the TCPA did not permit partial revocations lacking.  Returning to the common law principles of consent, the court reviewed tort and Fourth Amendment case law, both of which allow parties to give limited consent.  It reasoned that there was no reason to draw a distinction on consent for the TCPA.  Indeed, the court explained that “[w]e think it logical that a consumer’s power under the TCPA to completely withdraw consent and thereby stop all future automated calls, encompasses the power to partially withdraw consent and stop calls during certain times.”  Id. at 8 (internal citations omitted).

In its opinion, the court recognized that there could be some logistical and cost issues for companies attempting to comply with the TCPA where partial consent is allowed.  However, despite the potential compliance costs and complication, the court held that those factors did not limit the consumer’s rights.  Moreover, the court reasoned that, if compliance with the TCPA became too onerous, a creditor could just stop making automated calls.  And, on the issue of whether the plaintiff’s consent could be decided as a matter of law, the court decided it was a jury issue.  More broadly, the court noted that the issue of consent was ordinarily an issue for the jury.  Id. at 14.

Looking Ahead

As a result of the Court’s decision in Schweitzer, the TCPA landscape becomes more complicated, and likely expensive, at least in cases with similar circumstances within the Eleventh Circuit.  First, on the issue of compliance, companies making automated calls will have to carefully monitor their behavior based on customer’s communications, which may be vague or generally difficult to apply in a concrete manner.  And, as recognized by the court, creditor companies will likely have to expend additional resources to make their systems compliant with partial revocations. Additionally, disputes will likely be more expensive, because the issue of the parameters of consent will have to be fully litigated with a fact finder, adding weight to the calculus of the risk of liability.

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.

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