The Telephone Consumer Protection Act1 outlaws calls to a cell phone2 using any automatic dialing system or an artificial or prerecorded voice made without the prior express consent of the called party.3 In the recent Gager v. Dell Financial Services LLC decision, the U.S. Court of Appeals for the Third Circuit ruled express consent to be called can be revoked at any time. In so deciding, the court rejected a defense many creditors and debt collectors often assert: Once a debtor provides his cell phone number to you, you may call him at that number using an autodialer or prerecorded messaging for as long as the debt is owing.
The Gager facts are these. Gager gave Dell Computer her cell phone number when she applied for online credit to buy a new computer. When she got behind on payments Dell used an autodialer to call her to see when she would bring the account current. Gager eventually sent a letter to Dell saying stop calling. Dell disregarded the letter and continued to call about 40 times over a three-week period. Gager sued under the TCPA and the trial court dismissed her case, saying once she gave consent it could not be revoked.
The Court of Appeals reversed, holding that consent could be revoked at any time. There is no special exception for the debtor/creditor relationship. The court based its decision on these three factors:
Consent can be revoked at common law. Any ambiguity in the TCPA should be resolved in favor of the consumer. A recent FCC decision on another topic suggested revocation was possible.4 The court emphasized that there is nothing that prohibits Dell from continuing to call Gager; it just has to dial manually when it does so. The Gager decision will have serious consequences. It represents the first time a federal appellate court has addressed the revocation issue.
Even before the Gager appellate decision, many district courts addressing the issue held that a consumer can revoke her "prior express consent." Several cases require written revocation. Starkey v. Firstsource Advantage5 explicitly states that verbal revocation is not sufficient under the TCPA. The Starkey court stated that "[t]here is nothing in either the TCPA or the FCC's December 28, 2007 Declaratory Ruling to support plaintiff's claim that a verbal request is sufficient to cease legitimate debt collection efforts."6 Starkey and its progeny hold that written revocation is required.7 This Starkey line of cases all involve claims under both the...
