Another Court Agrees with Second Circuit- No Unilateral Revocation of TCPA Consent

Companies attempting to navigate the waters of consent revocation in the Telephone Consumer Protection Act (TCPA) context received some relief in Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2d Cir. 2017). In Reyes, as previously published by insideARM, the Second Circuit found that contractual consent to be contacted using an automatic telephone dialing system (ATDS) cannot be unilaterally revoked.

The Northern District of Alabama recently agreed with and adopted the Reyes reasoning in its decision in Few v. Receivables Performance Mgmt., No. 1:17-cv-02038 (N.D. Ala. Aug. 8, 2018).

Factual and Procedural Background

In this case, Plaintiff entered into a contract with DISH for television and internet services. In this contract, Plaintiff consented that DISH “and/or any debt collection agency and/or debt collection attorney hired by DISH” to contact her at her phone number ending in 0268 using an automated or predictive dialer to recover any unpaid bills.

DISH placed Plaintiff’s account with Receivables Performance Management (Receivables) to collect on Plaintiff’s alleged debt. After answering a call from Receivables, Plaintiff stated she did not want them calling her anymore. Despite this request, Receivables continued to call Plainitff.

Plaintiff filed a suit against Receivables alleging violations of the TCPA by continuing to call her after she revoked consent. Receivables filed and amended a motion for summary judgment arguing that contractual consent cannot be unilaterally revoked.

The Decision

In a relatively short decision, the court granted Receivable’s amended summary judgment motion.

The court found that the common law concept of consent applies to this situation. The court noted that common law consent can be unilaterally revoked, but not where there is a contractual restristriction that says otherwise. While the court left this sentence standing on its own, most contracts like the one in question contain a clause that states the terms of the contract may only be amended in a writing signed by both parties.

Since the Eleventh Circuit, under whose umbrella this court sits, has not ruled on this issue, the court turned to the Second Circuit’s Reyes decision. Using Reyes, the court found that “Ms. Few gave prior express consent to Receivables to make the calls and, because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent. Receivable’s phone calls to Ms. Few, therefore, did not violate the TCPA.”

insideARM Perspective

Many statutes govern communications in our industry. This decision focuses only on the TCPA. Reyes was a pivotal case in the in the context of TCPA consent. While Reyes is only binding on courts within the Second Circuit, it appears that its reasoning is now taking root in other parts of the country. A decision like this helps reinforce the TCPA's original purpose: to protect against unsolicited telemarketers, not companies with whom the consumer already has a business relationship.