Burr & Forman

08.14.2018   |   Alabama, Blog Articles, Prior Express Consent, Telephone Consumer Protection Act

Alabama District Court Holds Bargained For Consent To Be Called Cannot Be Unilaterally Revoked In TCPA Case

Few v. Receivables Performances Management, No. 1:17-cv-2038-KOB, 2018 WL 3772863 (N.D. Ala. Aug. 9, 2018)

The Telephone Consumer Protection Act, 47 U.S.C. §227 (TCPA), prohibits calls to cellular telephones using an Automatic Telephone Dialing System (ATDS), artificial or prerecorded voice. But calls made with prior express consent do not violate the Act. Plaintiff alleged Defendant violated the Act by calling her cell phone at least 184 times using an ATDS after she revoked prior express consent to be called. Defendant moved for summary judgment, arguing that Plaintiff could not revoke consent because her consent to be called was part of a bargained for exchange. Specifically, Plaintiff provided the original creditor with her cell phone number, and signed a contract providing that she authorized the original creditor and/or any debt collection agency and/or debt collection attorney hired by the original creditor to contact her at the number to recover any unpaid portion of her obligation to the original creditor through an automated or predictive dialing system, or prerecorded messaging system.

Citing Osorio v. State Farm Bank, F.S.B, 736 F.3d 1242, 1255 (11th Cir. 2014), the Court noted that revocation of consent should be evaluated under Section 227(b)(1)(A) by considering “‘the common law concept of consent,’” adding that these common law concepts allow the unilateral revocation of consent, but only “‘in the absence of any contractual restriction to the contrary.’” The Court also noted that the U.S. Court of Appeals for the Eleventh Circuit (the federal Appellate Court in the Court’s Jurisdiction) has not spoken further on how a contractual agreement bears on revocation of consent but the Second Circuit Court of Appeals, in Reyes v. Lincoln Automotive Fin. Serv., 861 F.3d 51, 56-57 (2d Cir. 2017), applying the same common-law concepts set forth in Osorio, persuasively reasoned that a party who grants consent to be contacted within an otherwise—valid contractual provision cannot thereafter unilaterally revoke her consent. The Court also quoted the portion of Reyes, stating “‘[w]e agree with the district court that the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent, and we decline to read such a provision into the act . . . It is black-letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.’”

Holding that Plaintiff could not revoke the consent she previously provided, the Court stated that she “gave prior express consent to [Defendant] to make the calls and, because she offered that consent as party of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent.” Thus, Defendant‘s calls did not violate the TCPA.

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