Eleventh Circuit Holds Consumers May Revoke "Prior Express Consent" Under the TCPA Either Orally or in Writing
In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh Circuit decided a critical issue: whether "prior express consent" under 47 U.S.C. §227 may be revoked and if so, how. The Court held that not only could a consumer revoke prior express consent, a consumer could do so in either orally or in writing. Next, the Court addressed whether or not actual prior express consent to the calls had been given. The Court rejected the argument that Betancourt could give consent on the basis of common authority over Osorio's cellular-phone, and instead articulated an agency question based on the common law concept of consent. The Court went on to discuss that the key facts as to whether or not Betancourt was an agent of Osorio are clearly in dispute and should be subject to further fact finding by the trial court. If the court finds that she is an agent, then it could be possible for Betancourt to provide the prior express consent, even if she is not the "called party." The Court next examined whether or not Osorio had effectively revoked any consent that may have been given to State Farm to make the calls. The Court expressly rejected the reasoning of a line of Western District of New York cases that held "prior express consent" could only be revoked in writing and instead held that "prior express consent" could be revoked by a consumer in either orally or in writing. In doing so, the Eleventh Circuit stated: First, as the ruling states, debt-collection calls are not exempt from 47 U.S.C. § 227(b)(1)(A)(iii); they are exempt only from the TCPA's separate restrictions on telephone solicitations. Second, the ruling's only reference to the FDCPA beyond that quoted above suggests that debt-collection calls are subject to restrictions under both the TCPA and the FDCPA. This other reference states that 'debt collection calls are regulated primarily by the Federal Trade Commission and are subject to the requirements of the Fair Debt Collection Practices Act (FDCPA), which prohibits abusive, deceptive, and otherwise improper collection practices by third-party collectors.' The word 'primarily' clearly implies that other laws, such as the TCPA, may also regulate debt-collection calls. Furthermore, nothing in the statutory text of the TCPA or of the FDCPA indicates that compliance with the FDCPA excuses compliance with the TCPA. The FDCPA explicitly specifies that "[i]f a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt." 15 U.S.C. § 1692c(c). Because the TCPA lacks equivalent language, we have no reason to assume that Congress intended to impose a similar in-writing requirement on the revocation of consent under the TCPA. Finally, the Court rejected the notion that State Farm was entitled to summary judgment because neither Osorio nor Betancourt were charged for the calls in question. Such an argument, the Court opined, is based on an improper reading of the subsection that modifies all of the services covered in the statute by the final grouping of "any service for which the called party is charged for the call." The Court made special note of the fact that the TCPA was designed to protect the consumer from unnecessary and harassing phone calls, and as such, should be construed in a light favorable to providing this protection. Therefore, a consumer may demonstrate revocation of "prior express consent" either in writing or orally when bringing a TCPA claim under 47 U.S.C. §227.