Whether and in what form a consumer has given consent to be contacted via an automatic telephone dialing system (ATDS) may be a crucial aspect of determining liability under the Telephone Consumer Protection Act (TCPA). Consent may preclude certain TCPA claims altogether, since the TCPA prohibits certain types of calls, including those using an ATDS, to the extent that the caller does not have “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)-(B).
Recently, a growing (but not unanimous) number of courts have held that a consumer may not revoke consent if it is a term of a bargained-for contract between the consumer and caller. As a result, the ability of consumers to revoke contractually agreed-upon consent to automated communication remains unsettled and potentially ripe for a circuit split. Following these decisions and understanding the extent of their holdings could dramatically impact exposure and liability under the TCPA.
Reyes: Irrevocability of Consent in a Bilateral Exchange
In June 2017, the United States Court of Appeals for the Second Circuit held that a consumer may not unilaterally revoke consent in a bargained-for, bilateral exchange. Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 53 (2d Cir. 2017). (See our earlier alert on Reyes.) In holding that a consumer’s consent is irrevocable when contractually agreed-upon, the Reyes court grounded its decision in “black-letter” contract law. The court looked to a fundamental aspect governing contractual relationships, namely that one party cannot alter or revoke a term of a bilateral agreement without the other party’s consent.
The Reyes court found that a consumer, having consented to be contacted via an ATDS, could not unilaterally revoke such consent without the caller’s permission. Importantly, the Second Circuit distinguished prior case law from the Third and Eleventh Circuits where consumers retained their ability to revoke consent because such consent was “freely and unilaterally given” in credit applications, rather than part of a bilateral contract.
A number of federal district courts across the country have followed the Second Circuit’s lead in Reyes. Despite a noticeable trend following Reyes, the case law is not unanimous. While consent provisions in consumer contracts may prove to be a valuable means of limiting exposure to the TCPA, the extent to which such provisions reduce or even eliminate the risk of TCPA liability remains an area of continued development and interpretation by the courts.
Recent District Court Decisions
In August 2018, the Middle District of Florida in Medley v. Dish Network, LLC, Case No. 8:16-cv-2534-T-36TBM, 2018 WL 4092120, at *10 (M.D. Fla. Aug. 27, 2018), held that the TCPA does not diverge from common law contract principles, and therefore consent provided by contract cannot be unilaterally revoked. Specifically, the court noted that “[n]othing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law.” The plaintiff in Medley signed a contract with DISH in which the plaintiff explicitly consented to receive calls placed via an ATDS. The Medley court, in granting the defendant’s motion for summary judgment, held that a consumer who has consented to automated communication in a contract for services cannot later revoke such consent. In short, the court declined to “alter[ ] the common-law notion that consent [agreed to by contract] cannot be unilaterally revoked” without Congressional intent in the TCPA expressing otherwise. The court granted the defendant’s motion for summary judgment. The plaintiff has since filed a notice of appeal in Medley on September 7, 2018, which remains pending.
Similarly, the District of Connecticut declined to require that irrevocability be expressly agreed to by the parties. In Harris v. Navient Sols., LLC, Case No. 3:15-cv-564 (RNC), 2018 WL 3748155, at *2 (D. Conn. Aug. 7, 2018), the District of Connecticut...
