United States: 11th Circuit Rules That Consent Under TCPA Can Be Partially Revoked

Last Updated: September 12 2017
Article by Ethan G. Ostroff, David N. Anthony, James Trefil and Alice Grabe

The Eleventh Circuit ruled in Schweitzer v. Comenity Bank that a consumer can verbally revoke consent to be called on her cell phone using an automatic telephone dialing system "in the morning and during the work day." As a result, the district court improperly granted summary judgment to the bank because a jury could find the consumer had partially revoked her consent to be called "in the morning" and "during the work day" during a phone call from the defendant.

In this case, alleging more than 200 autodialed calls in violation of the Telephone Consumer Protection Act, the defendant bank argued the TCPA does not permit partial revocations of consent, contending that "the only effective revocations are unequivocal requests for no further communications whatsoever." The Eleventh Circuit disagreed.

"In law, as in life, consent need not be an all-or-nothing proposition," the Court explained in the unanimous decision. "We think it logical that a consumer's power under the TCPA to completely withdraw consent and thereby stop all future automated calls encompasses the power to partially withdraw consent and stop calls during certain times."

The panel relied on Osorio v. State Farm Bank, in which the Eleventh Circuit held that, "absent a contractual restriction to the contrary, the TCPA allows a consumer to orally revoke her consent to receive automated calls." The Court further noted that "[w]e reasoned in Osorio that, based upon statutory silence regarding the means for providing or revoking consent, we could infer that Congress intended for the TCPA to incorporate the common-law understanding of consent, which generally allows for oral revocation ... . Moreover, we explained that 'allowing consent to be revoked orally is consistent with the government interest articulated in the legislative history' of the TCPA — namely, enabling the recipient of incessant and unwanted calls to 'tell ... the autodialers to simply stop calling.'"

In this case involving a credit card application where the plaintiff provided her cellular phone number to the bank, "[a] jury could certainly find that Ms. Schweitzer — like the protagonist of a recent hit song — was too equivocal," the Court wrote, invoking the Carly Rae Jepsen hit song "Call Me Maybe", "but we do not think that the lack of specificity is fatal to her claim of partial revocation."

This ruling involving a phone number provided on a credit card application should be read in conjunction with the recent decision from the Second Circuit in Reyes v. Lincoln Automotive Financial Services, which involved a contractual provision granting the right to place calls to a telephone number. In Reyes, the court ruled that "the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent, and we decline to read such a provision into the act." More discussion on Reyes can be found here.

The Troutman Sanders' Consumer Financial Services Law Monitor blog offers timely updates regarding the financial services industry to inform you of recent changes in the law, upcoming regulatory deadlines and significant judicial opinions that may impact your business. To view the blog, click here

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Authors
Ethan G. Ostroff
David N. Anthony
Alice Grabe
 
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