TCPA: First Federal Appeals Court to Address the Issue Holds That Consumers May Revoke Consent
On August 22, 2013, the Third Circuit Court of Appeals ruled that a consumer may revoke her consent to be contacted by a creditor with an automated dialing system under the TCPA. In its opinion, which is available here, the Third Circuit became the first federal appeals court to address this hotly-litigated issue.
The case, Gager v. Dell Financial Services LLC, arose out of a line of credit the defendant, Dell Financial Services LLC (“Dell”), provided to plaintiff, Ashley Gager, to purchase a computer. After Gager defaulted on her debt, Dell used an automated dialing system to call her on the telephone number she provided in her credit application. Gager had provided her cellular telephone number on the application for credit. In December 2010, Gager sent a cease and desist letter, requesting that Dell stop calls to her cellular telephone.
In its analysis of whether Gager’s letter constituted a viable revocation of consent granted in a credit application under the TCPA, the Court relied heavily upon a 2012 Federal Communications Commission (“FCC”) declaratory ruling, which the Court explained “demonstrates that the FCC endorses two important points: (1) a consumer may revoke her informed consent once it has been given . . . and (2) there is no temporal limitation on when a consumer may revoke her prior express consent by sending an opt-out message.” The Third Circuit did not address whether the revocation can be verbal or must be in writing, though it did indicate that revocation can occur at any time.
The Court rejected Dell’s argument that the lack of an express provision in the TCPA permitting revocation of consent was determinative. The Court explained that, in addition to the guidance provided by the FCC’s ruling, (1) revocation is fundamental to the common law concept of consent; and (2) in light of the TCPA’s purpose, any silence in the statute should be construed in favor of consumers.
Practical Implications
While the district courts have been split on the issue of whether consent under the TCPA may be revoked, this is the first time that a Circuit Court of Appeals has spoken on the issue. Importantly, the Court relied on common law principles of consent in its holding, which may leave open the argument of contractual consent. This decision, therefore, does not foreclose the corollary argument that where a material term of the contract expressly provides for consent and a modification of the contract must be agreed to by the parties, that revocation is impermissible absent agreement by both parties.
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