The Telephone Consumer Protection Act (“TCPA”) generally prohibits automated or prerecorded calls to cellular phones, absent the recipient’s express consent. Although other courts and the Federal Communications Commission (“FCC”) have held that consent may be revoked when it was given “gratuitously,” in Reyes v. Lincoln Automotive Financial Services, the Second Circuit Court of Appeals issued a significant opinion on June 22, 2017, holding that “the TCPA does not permit a consumer to revoke its consent to be called when that consent forms part of a bargained-for exchange.” The Second Circuit’s opinion provides businesses with another defense to TCPA lawsuits and provides guidance for businesses to implement changes that may help protect them against potentially onerous TCPA liability.

Background -

In 2012, Alberto Reyes financed a car through Lincoln Automotive Financial Services (“Lincoln”). Mr. Reyes provided his cell phone number on his lease application, and the lease agreement he signed contained a provision in which Mr. Reyes “expressly consent[ed]” to Lincoln’s contacting him by “written, electronic or verbal means” including “contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems.” The lease agreement permitted Lincoln to contact Mr. Reyes at “any telephone number you provide, now or in the future, including a number for a cellular phone or other wireless device, regardless of whether you incur charges as a result.”