Client Alert Litigation
Pillsbury Winthrop Shaw Pittman LLP www.pillsburylaw.com | 1
January 14, 2015
Stop Calling Me: Can Consumers Waive The
Right to Revoke Consent under the TCPA?
By Catherine D. Meyer, Andrew D. Bluth, Amy L. Pierce, and Elaine Lee
The Telephone Consumer Protection Act permits companies to make telephone
solicitations using autodialers and pre-recorded messages once they have a
consumer’s consent to do so. Many authorities have suggested that such consent can
later be revoked. However, it remains an open issue whether a consumer can waive
his or her right to revoke consent, contractually or otherwise.
The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (the “TCPA”), regulates telephone
solicitations made using an automated telephone dialing system (also referred to as an “autodialer” or “ATDS”)
and pre-recorded messages. In February 2012, the Federal Communications Commission (FCC) revised its
rules and regulations implementing the TCPA to further “protect consumers from unwanted telemarketing calls”
while at the same time acknowledging that wireless services offer access to information that consumers find
highly desirable. The revised rules and regulations require telemarketers to obtain prior express written consent
before making autodialed or pre-recorded telemarketing calls.1 The Ninth Circuit, in Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009), found that the term “call,” as used in the TCPA, includes text
messages. Although the TCPA requires that a consumer give consent prior to receiving telemarketing calls or
messages, the TCPA and the FCC’s implementing rules and regulations are silent as to the consumer’s ability
to then change his or her mind and later revoke consent. Most authorities and courts agree that, under the
TCPA, consumers have the right to revoke previously given consent to be called using an ATDS or pre-
recorded message (also referred to as “opting out”). More recently, however, courts have been asked to decide
whether a consumer is permitted to revoke this consent where it was previously given as part of an
independent contractual arrangement, or whether that right to revoke can be waived.
The FCC’s Ruling in SoundBite Permits Consumers to Revoke Consent
In 2012, the FCC issued a declaratory ruling in In the Matte r of Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, SoundBite C ommunications, Inc., 27 FCC Rcd. 15391 (Nov. 26,
2012), in which the FCC, by determining that it was per missible to the send a single text message confirming a
1 The previous rules and regulations did not contain the “written” requirement. The current rules and regulations regarding prior
consent for non-telemarketing, informational calls remain unchanged from their previous version. For discussion, see Pillsbury
Client Alert, “New FCC Regulations to Take Effect Regarding Telemarketing Robocalls,” October 3, 2013.
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Consumer & Retail Litigation
