Revocation of Consent Under TCPA: Not So Fast

Bradley Arant Boult Cummings LLP
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In a recent case under the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals for the Second Circuit held that the TCPA does not permit a consumer to revoke prior consent to be contacted by telephone when that consent was provided, “not gratuitously, but as part of a bargained-for consideration” in a contract.  In Alberto Reyes v. Lincoln Automotive Financial Services, Reyes leased an automobile from Lincoln and, as part of his lease agreement, consented to receive telephone calls from Lincoln. After Reyes defaulted on the lease agreement, Lincoln called Reyes in an attempt to cure the default. Reyes alleged that he mailed a letter requesting that Lincoln stop contacting him via telephone, thus revoking his prior consent. Reyes contended that a consumer may unilaterally revoke prior consent when that consent is given freely as part of a loan or insurance contract, and relied on case law from the Third and Eleventh Circuits, as well as a FCC ruling to support his position. The Second Circuit rejected Reyes’ argument and held that a consumer may not unilaterally revoke prior consent included as an express provision of a binding legal agreement. This decision provides insightful guidance on how banks and financial services companies might structure consent provisions in lease agreements and similar consumer contracts.

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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