Burr & Forman

08.29.2018   |   Contractual Consent, Florida, Prior Express Consent, Revocation, Telephone Consumer Protection Act

Middle District of Florida Holds Contractual Consent Cannot Be Unilaterally Revoked

Medley v. Dish Network, LLC, Case No. 8:16-cv-3534-36TBM, 2018 WL 4092120 (M.D. Fla. Aug. 27, 2018)

Joining a host of courts across the county, the U.S. District Court for the Middle District of Florida recently ruled that contractual prior express consent to be called cannot be unilaterally revoked. The basis for the Court’s holding was that Plaintiff entered into an Agreement with Defendant, incorporating a Customer Agreement providing that:

By signing below, you authorize [Defendant], and any debt collection agency or debt collection attorney hired by [Defendant], to contact you regarding your [ ] account or to recover any unpaid portion of your obligation to [Defendant], through an automated or predictive dialing system or prerecorded messaging system, at the phone number (including any cellular number), or other contact information you have provided, or subsequently provide to [Defendant]. You understand that you do not need to provide a cellular phone number to receive [Defendant’s] services.

Plaintiff further agreed that contact could be made “‘at the telephone number(s) that [Plaintiff] provide[d] to [Defendant], including, without limitation, any mobile telephone number(s).’” When Plaintiff entered into the Agreement, she provided a telephone, later speaking with Defendant and providing the number at issue.

Plaintiff’s counsel subsequently sent Defendant a letter stating, in part, that counsel represented Plaintiff and “if prior express consent had previously been given, it was revoked.” After Defendant continued to call Plaintiff, Plaintiff filed suit alleging, among other claims, a violation of the TCPA. Plaintiff claimed that continued calls after prior express consent to receive calls had been revoked by her attorney violated the TCPA. Defendant moved for summary judgment, arguing that the contract between the parties prohibited Plaintiff from unilaterally revoking consent to call Plaintiff.

After noting the requirements of prior express consent to make calls subject to the TCPA, the Court pointed out that the only issue presented was whether Plaintiff could unilaterally revoke consent to receive calls subject to the TCPA after providing prior express consent through the parties’ agreement. The Court began its analysis by recognizing the U.S. Court of Appeals for the Eleventh Circuit’s statement that “‘in the absence of any contractual restriction to the contrary,’ the consumer [is] ‘free to orally revoke any consent previously given to’ the creditor in connection with the consumer’s debt,” adding that the Court of Appeals has not ruled on the issue presented in this case, “which is whether consent may be unilaterally revoked when it is given as part of a bargained for contract.”

Following the holding of the U.S. Court of Appeals for the Second Circuit in Reyes  v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), the Court held that:

“[B]ecause an ‘agreement is a manifestation on the part of two or more persons,’ it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed.’ Nothing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law. Moreover, the Eleventh Circuit has indicated that revocation may not be permitted, where a contractual provision contrary to revocation exists, which is the exact case here. [Plaintiff] consented to be contacted “through an automated or predictive dialing system or prerecorded messaging system at the phone number (including any cell phone numbers), or other contract information [she] provided or subsequently provide to [Defendant].” She subsequently provided [Defendant] with the Number. Thus, [Plaintiff] granted prior express consent as part of a contractual provision that could not be unilaterally revoked.

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