One of the hot issues in pending litigation under the Telephone Consumer Protection Act (TCPA) is whether a consumer can revoke consent to receive calls on a cell phone. A number of courts have recently held that a consumer can revoke consent to be contacted by cell phone. Generally, the TCPA requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but the statute is silent on the right to revoke. If consent is not forever, that begs the question: What constitutes valid revocation? Several courts have recently addressed this issue under a variety of scenarios.
Can Prior Express Consent Be Revoked?
There is a split in authority on whether consent can be revoked under the TCPA. A number of courts are trending toward the conclusion that consent is revocable.
The Third Circuit was the first federal appellate court to address this issue. In Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013), the court held that a consumer has a right to revoke consent notwithstanding the absence of a statutory provision specifically authorizing revocation. The court reasoned that the common law concept of consent should be applied, and that a right to revoke is not inconsistent with prior Federal Communications Commission (FCC) decisions. Accordingly, silence in the statute should be interpreted in favor of consumers, consistent with the overall judicial trend toward interpreting the TCPA in consumers’ favor. The court also stated that there should not be a temporal restriction on the right to revoke. After Gager, most courts appear to be following the Third Circuit’s lead.
Prior to Gager, however, a number of courts issued decisions holding that the lack of a revocation provision in the TCPA meant that the right to revoke does not exist, and these cases remain good law in other jurisdictions. See Kenny v. Mercantile Adjustment Bureau, LLC, 10-CV-1010, 2013 WL 1855782 (W.D.N.Y. May 1, 2013); Saunders v. NCO Fin. Sys., Inc., 910 F. Supp. 2d 464, 468-69 (E.D.N.Y. 2012).
What Constitutes Revocation?
If a consumer has a right to revoke consent, what must the consumer do to exercise that right? In Gager, the plaintiff sent a letter attempting to revoke her consent in writing. While the parties disputed whether there was a right to revoke, there was no factual dispute about whether the written letter was sufficient to trigger the alleged right. Courts following the Gager rule on revocation are now confronting a variety of factual situations where the consumer’s exercise of the right to revoke is less clear cut.
The Eleventh Circuit recently addressed revocation in a case that presented a factual issue for a jury on the issue of the sufficiency of oral revocation. Osorio v. State...
