Burr & Forman

08.15.2018   |   ATDS, Automatic Telephone Dialing System, Blog Articles, Connecticut, Prior Express Consent, Revocation, Telephone Consumer Protection Act

Another Court Holds That Bargained-For Consent To Be Called Cannot Be Unilaterally Revoked In TCPA Case

Harris v. Navient Solutions, LLC, No. 3:15-cv-546, 2018 WL 3748155 (D. Conn. Aug. 7, 2018)

Plaintiff signed promissory notes to secure student loans in which she provided her telephone number, agreed to update Defendant if her number changed and to the following clause:

“This Note may be modified only if you put the modification in writing and the modification is agreed to by any borrower or cosigner . . . I understand that you may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact me in connection with this loan or loan application. You may contact me at any telephone number I provide in this application or I provide in the future, even if that number is a cellular telephone number.“

During a two-year period, Defendant frequently used an Automatic Telephone Dialing System (ATDS) to contact Plaintiff’s cell phone. Plaintiff claimed she told Defendant to stop calling her “many, many times” and that despite these requests, calls continued until her attorney sent Defendant a letter stating Plaintiff had revoked authorization to call her.

Following the U.S. Court of Appeals for the Second Circuit’s holding in Reyes v. Lincoln Auto Fin. Servs., 861 F.2d 51, 56 (2d Cir. 2017) as amended (Aug. 21, 2017), the Court stated: “[t]he Second Circuit has held that ‘the TCPA does not permit a party who agrees to be contacted as a part of a bargained-for exchange to unilaterally revoke that consent.’ It is undisputed that plaintiff consented to receiving ATDS calls when she signed her promissory notes. This fact is dispositive under Reyes.” In light of this conclusion, the Court granted summary judgment in Defendant’s favor on Plaintiff’s TCPA claim.

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