TelecommunicationsOn August 22, 2013, the United States Court of Appeals for the Third Circuit ruled that consumers may revoke consent to receive automated dialer telephone calls on their mobile phones pursuant to the Telephone Consumer Protection Act (“TCPA”).  The decision marks the first time that a federal appellate court has ruled that consumers may revoke TCPA consent.

The facts of the underlying litigation are simple enough.  In 2007, the plaintiff applied for a line of credit from Dell to purchase computer equipment.   On the credit application, the plaintiff listed her telephone number (although she did not indicate that it was a mobile telephone).  After opening her line of credit, the plaintiff subsequently defaulted on her debt.  Dell began calling the plaintiff’s mobile telephone leaving pre-recorded messages on her voicemail concerning the debt.

The plaintiff sent a letter to Dell, listing her mobile telephone number and requesting that Dell cease calling the number regarding her account.  Nevertheless, the plaintiff alleged that Dell called her mobile telephone approximately 40 times over the next 3 weeks using an automated telephone dialing system.  Dell moved to dismiss the complaint, arguing that consumers do not have the right to revoke TCPA consent once given.  The district court agreed, but the Court of Appeals for the Third Circuit reversed.

The Court looks to the FCC Regarding TCPA Consent

In deciding that consumers do have a right to revoke TCPA consent, the Court looked to the reasoning of the Federal Communications Commission (“FCC”) in its recent declaratory ruling In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc.  Although the FCC’s decision in SoundBite was directed at the use of an automated dialing system to confirm an opt-out request, the Court reasoned that the FCC’s decision implicitly demonstrates that consumers may revoke TCPA consent after it has been given.

As the Court admitted, the FCC never articulated a rationale in SoundBite for deciding why the TCPA affords consumers the right to revoke consent, but the Court followed the FCC’s reasoning nevertheless.  In reaching its decision, the Court rejected arguments made by Dell and the reasoning of other federal courts that if Congress wanted to give consumers a right to revoke TCPA consent, it would have done so in the TCPA the way it had in the Fair Debt Collection Practices Act, the CAN-SPAM Act of 2003 and the Junk Fax Prevention Act of 2005 (all of which contain statutory avenues for revoking consent).

Additional Reasoning

The Court further supported its decision by relying on the common law definition of consent.  The Court opined that Congress did not intend to depart from common law consent parameters, which allow consent to be withdrawn at any time.  Additionally, the Court held that because the TCPA is a remedial statute passed to protect consumers from unwanted automated telephone calls, the TCPA should be interpreted in favor of the consumer’s right to withdraw consent.

Finally, the Court rejected Dell’s argument that even if consumers are allowed to revoke TCPA consent, such revocation must have been made at the time she submitted her telephone number to Dell.  The Court relied upon both the express language of the TCPA (which contains no temporal limitation on withdrawing consent) and the common law definition of consent.

Protect Yourself against TCPA Class-Action Claims

The decision of the Third Circuit creates a new landscape for TCPA claims.  Businesses may find themselves besieged with litigation from consumers who formerly provided consent, but later withdrew consent.  It is important that businesses understand the various provisions of the TCPA and protect themselves before they find themselves served with legal process.

If you are interested in learning more about this topic, or if you have been served with legal process relating to the TCPA, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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