Burr & Forman

08.15.2018   |   ATDS, Blog Articles, Connecticut, Consumer Finance Litigation

District Court of Connecticut Follows Reyes Decision

In Harris v. Navient Solutions, LLC, No. 3:15-cv-564 (RNC), 2018 WL 3748155 (D. Conn. Aug. 7, 2018), the United States District Court for the District of Connecticut followed the Second Circuit’s decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), which held that the TCPA did not permit unilateral revocation of consent to calls that was part of a bargained-for exchange. See Reyes, 861 F.3d at 56.

The plaintiff, Jennifer Harris (“Plaintiff”), alleged Navient Solutions (“Navient”) violated the TCPA by using an automatic telephone dialing system (“ATDS”) to call her after she made verbal requests for Navient to stop calling. Under the TCPA, calls to a cell phone using an ATDS or prerecorded voice are prohibited unless the called party has given express consent. See 47 U.S.C. § 227(b)(1)(A)(iii). Navient argued it was entitled to summary judgment because Plaintiff had contractually consented to ATDS calls and could not unilaterally revoke her consent.

In reaching its decision, the court considered the language of Plaintiff’s contracts and found that Plaintiff “provided her telephone number and agreed to notify the defendant if her number changed.” Harris, 2018 WL 3748155, at *1. Additionally, Plaintiff’s contracts included provisions agreeing to the use of “automated telephone dialing equipment or an artificial or prerecorded voice message to contact [Plaintiff] in connection with this loan . . . at any telephone number” she provided, including numbers provided in the future. Id. The contract also provided that it could only be modified in writing. Id. The court concluded Plaintiff’s contractual consent to ATDS calls was undisputed, which was “dispositive under Reyes.” Id. at *2.

Plaintiff attempted to argue that the consent clause was “ambiguous because it can be interpreted to provide only ‘initial’ consent to receive ATDS calls.”  Id. However, the court observed that the clause did not include any temporal restrictions and even contemplated future calls by including the language “[y]ou may contact me at any telephone number . . . I provide in the future.” Id. The court thus concluded there was no ambiguity in the consent provision.

Plaintiff also asserted that “contractually-provided consent is irrevocable only when ‘the parties expressly agree by contract that consent is irrevocable.'” Id. The court compared the provisions at issue in Plaintiff’s contract to the provisions at issue in Reyes and noted that both “[were] silent on revocation.” Id. Nonetheless, the court found that Plaintiff’s argument failed in light of Reyes which held that bargained-for consent granted in a contract was irrevocable. Id.

Finally, Plaintiff argued that a 2015 FCC ruling permitted revocation of consent. Again, the court turned to the analysis in Reyes where the Second Circuit found that the FCC ruling only applied to the narrow issue of whether a customer who freely and unilaterally gave consent could later revoke it. Unlike the issue in the FCC ruling, the issue in Harris was whether a customer could unilaterally revoke consent that had been given “‘as bargained-for consideration in a bilateral contract.'” Id. at *3 (quoting Reyes, 861 F.3d at 656). The Harris court determined that Reyes answered this question and, therefore, found that Plaintiff could not unilaterally revoke her contractual consent to ATDS calls and granted Navient’s motion for summary judgment.

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