United States: Second Circuit: You Agreed To Be Called When They Loaned You The Money, So Now Live With It

In a case of first impression, the Second Circuit recently ruled that the TCPA does not permit a consumer to unilaterally revoke bargained-for consent to be contacted by autodialer and pre-recorded voice calls on a mobile number provided in an auto lease agreement. The court found that such bargained-for consent, was outside the scope of the FCC's 2015 TCPA Declaratory Ruling, which required that consent can be revoked at any time by any reasonable means, finding that the ruling only applies to "gratuitous" consent provided by the consumer, not consent that is part of a bargained-for agreement.

In Reyes v. Lincoln Automotive Financial Services, plaintiff Alberto Reyes, Jr. leased a car from defendant, Lincoln Automotive Financial Services, and defaulted on the lease. The lease agreement included a provision where Reyes provided express consent for Lincoln to contact him by "manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic dialing systems." After Reyes stopped making his lease payments, Lincoln tried to contact him multiple times via autodialer and pre-recorded voice calls on his mobile phone. Reyes then allegedly sent a letter to Lincoln stating that he was revoking consent to be called at that number. When Lincoln continued to call him via autodialer and pre-recorded voice calls, Reyes filed a TCPA action in the E.D.N.Y. seeking $720,000 in damages. The District Court granted summary judgment for Lincoln, finding that: (1) Reyes had failed to adduce sufficient evidence, even at the summary judgement stage, to support his claim that he had revoked consent, and (2) that, regardless, "the TCPA does not permit a party to a legally binding contract to unilaterally revoke bargained-for consent to be contacted by telephone."

On appeal, the Second Circuit agreed with Reyes that grant of summary judgment based on Reyes' failure to sufficiently support his claim that he revoked consent was inappropriate, and the issue was one of fact for the jury. However, the Second Circuit affirmed the second basis for the District Court's grant of summary judgment, finding that the TCPA does not specifically authorize one party to revoke express consent provided for in a bilateral agreement, when such consent is provided as bargained-for consideration. The Second Circuit distinguished such provision of consent from "gratuitously"-provided consent, which would be revocable at any time, such as where a consumer merely provides his or her phone number to the company.

In this way, the court found that the situation in Reyes was distinguishable from the FCC's decision in its 2015 declaratory ruling (now on appeal to the D.C. Circuit), where the FCC said that consent can be revoked at any time through any reasonable means. The court found that the FCC's decision on revocation of consent was based on situations where the consumer gratuitously provides consent, and nothing in the Commission's decision indicated that it was intended to reach situations where consent was part of a bargained-for agreement. Nor did anything in the TCPA require that a consumer has a right to revoke bargained-for consent.

Importantly, the court recognized that relying on its ruling, businesses might – going forward – provide for consent language in standard sales contracts, thereby making revocation impossible. The court noted, however, that such a concern was one of public policy, rather than a legal concern, and was therefore a decision for Congress as opposed to the courts. While it does not necessarily follow that the provision of express consent in other types of customer agreements covering account-related calling would be treated in the same manner (or, for that matter, how courts outside the Second Circuit would decide the issue), the Second Circuit decision suggests that businesses could give thought to whether it makes sense to include such express consent provisions for account-related calls in certain circumstances (for example, where credit is being extended), as potentially insulating against TCPA claims arising from revocation of consent.

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