Burr & Forman

09.8.2017   |   Blog Articles, Prior Express Consent, Revocation, Telephone Consumer Protection Act

Second Circuit Holds Contractually Provided Consent Cannot Be Revoked

Reyes v. Lincoln Automotive Financial Services, No. 16-2104-cv (2nd Cir. August 21, 2017)

Plaintiff leased a car from Defendant. A term of the lease stated:

You [Reyes] also expressly consent and agree that Lessor [Ford], Finance Company, Holder and their affiliates, agents and service providers may use written, electronic or verbal means to contact you. This consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems. You agree that Lessor, Finance Company, Holder and their affiliates, agents and service providers may use any email address or any telephone number you provide now or in the future, including a number for a cellular phone or other wireless device, regardless of whether you incur charges as a result.

Plaintiff stopped making payments on the lease, and Defendant called Plaintiff in an attempt to cure his default. Plaintiff claimed he revoked consent to be called, mailing Defendant a letter stating “I would also like to request in writing that no telephone contact be made by your office to my cell phone.” Defendant claimed it never received the letter. Plaintiff later filed suit, seeking $720,000. Defendant moved for summary judgment which was granted on the basis that: (1) Plaintiff introduced insufficient evidence of revocation; and (2) In any event the TCPA does not allow revocation when consent is provided as consideration in a binding contract.

While holding Plaintiff introduced sufficient evidence of revocation to create a question of fact regarding revocation, the U.S. Court of Appeals for the Second Circuit agreed with the district court that the terms of Plaintiff’s lease prohibited revocation of consent. Noting that the U.S. Courts of Appeals for the Third and Eleventh Circuits recognized revocation of consent where the called party’s consent was provided through listing phone numbers on applications, and noting the FCC’s reliance on these cases when ruling that “prior express consent” is revocable, the Second Circuit Court of Appeals stated that:

Gager, Osario and the 2015 FCC Ruling considered a narrow question: whether the TCPA allows a consumer who has freely and unilaterally given his or her informed consent to be contacted can later revoke that consent. Reyes’s appeal presents a different question, which has not been addressed by the FCC or, to our knowledge, by any federal circuit court of appeal: whether the TCPA also permits a consumer to unilaterally revoke his or her consent to be contacted by telephone when the consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract.

Citing principles of common law, the Second Circuit Court of Appeals stated “Consent,” is not always revocable under the common law, drawing a distinction between tort and contract and noting that, in tort, “consent” is generally defined as a gratuitous action or “[a] voluntary yielding of what another proposes or desires.” In this case, however, Plaintiff’s consent was not gratuitous, it was included as an express provision of a contract to lease an automobile. Thus, under “such circumstances, ‘consent,’ as the term is used in the TCPA, is not revocable.”

A copy of the opinion can be found here.

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