Burr & Forman

05.6.2020   |   Blog Articles, Eleventh Circuit, Revocation, Telephone Consumer Protection Act

Eleventh Circuit Holds Consent in Bargained-For Contract Cannot Be Unilaterally Revoked

Medley v. Dish Network, LLC, No. 8:16-cv-02534-CEH-CPT (11th Cir. May 1, 2020).

Plaintiff entered into a contract, providing her cell phone number and expressly authorizing Defendant “to contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system.” Plaintiff’s counsel sent Defendant three faxes noting the Telephone Consumer Protection Act’s (TCPA) prohibition again making any call to their client using an automatic telephone dialing system (ATDS) or artificial or pre-recorded voice to a cellular telephone without prior consent, and expressly stating that “[t]o the extent any such prior express consent existed, if any, to call the above person using an ATDS, such consent is hereby forever revoked consistent with the Florida and federal law.” Defendant made six automated calls to Plaintiff after receiving the first fax.

The district court granted summary judgment in Defendant’s favor on Plaintiff’s TCPA claim, concluding that the TCPA does not authorize unilateral revocation of consent to receive automated calls when such consent is given in a bargained-for contractual provision. Noting that the district court followed Reyes v. Lincoln Auto Fin. Servs., 861 F.3d 51, 55 (2nd Cir. 2017), the only Circuit to specifically address whether bargained-for consent can be unilaterally revoked, the U.S. Court of Appeals for the Eleventh Circuit held that:

Like the district court, we agree with the Second Circuit. We have expressly stated that “an ‘agreement is a manifestation of mutual assent on the part of two or more persons,’ [and thus] 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” [. . .] Permitting Medley to unilaterally revoke a mutually-agreed-upon term in a contract would run counter to black-letter contract law in effect at the time Congress enacted the TCPA. “Absent express statutory language to the contrary, we cannot conclude that Congress intended to alter the common law of contracts in this way.” Reyes, 861 F.3d at 59 (citing Neder, 527 U.S. at 21-23, 119 S.Ct. 1827)

A copy of the opinion can be viewed by clicking here.

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