United States: Call Me Maybe: 11th Circuit Broadly Interprets TCPA To Allow Partial Oral Revocation Of Consent

Josh Roberts is a Partner and Laura Renstrom is an Associate in Holland & Knight's Jacksonville office

HIGHLIGHTS:

  • The U.S. Court of Appeals for the Eleventh Circuit has held that, absent a contractual restriction to the contrary, a consumer may partially, orally revoke consent to receive automated calls under the Telephone Consumer Protection Act (TCPA).
  • Under the Eleventh Circuit's broad interpretation of the TCPA, consumers may orally revoke consent to be called during certain hours of the day.
  • A critical restraint on the Eleventh Circuit's broad interpretation of a consumer's ability to partially revoke consent is a contractual provision to the contrary that limits the scope, manner or method of revocation. Nonetheless, companies should take a close look at their automated telephone dialing system policies to confirm legal compliance.

In light of the flux of recent litigation arising under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §227 et seq., resulting in multimillion-dollar settlements and adverse judgments against companies across all industries, compliance with the TCPA has never been more important.

Recently, the U.S. Court of Appeals for the Eleventh Circuit held that, absent a contractual restriction to the contrary, a consumer may partially, orally revoke consent to receive automated calls under the TCPA.Schweitzer v. Comenity Bank, No. 16-10498 (11th Cir. Aug. 10, 2017)

The TCPA provides a damages remedy for cellular phone subscribers who receive autodialed phone calls without giving prior express consent to receive such calls. Consent to be called, a key principle under the TCPA, is interpreted by applying common law principles of consent. Under the Eleventh Circuit's broad interpretation of the TCPA in Schweitzer, consumers may orally revoke consent to be called during certain hours of the day. This decision follows the Eleventh Circuit's 2014 opinion in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014), in which the Court held that the TCPA allows a consumer to revoke consent to receive automated calls both orally and in writing.

Case Background

In 2012, the Schweitzer plaintiff provided her cellular phone number in connection with a credit card application. After the plaintiff failed to make the required credit card payments, she received calls regarding the delinquency. On Oct. 13, 2014, on a call with a representative from the defendant, the plaintiff stated: "[I]f you guys cannot call me, like, in the morning and during the work day, because I'm working, and I can't really be talking about these things while I'm at work." In March 2015, on a call with a separate representative, the plaintiff requested that the defendant stop calling her cellular phone, after which time the calls ceased.

The plaintiff brought an action in the Southern District of Florida, alleging violations of the TCPA. She alleged that she revoked her consent to be called on Oct. 13, 2014, and the calls to her phone between October 2014 and March 2015 violated the TCPA. The district court granted summary judgment in favor of the defendant on the plaintiff's TCPA claim, concluding that: 1) the company did not know that the plaintiff wanted no further calls and 2) no reasonable jury could find that the plaintiff revoked consent to be called, because she did not define or specify the parameters of the times she did not want to be called.

Eleventh Circuit Decision

The Eleventh Circuit held that the TCPA allows a consumer to partially revoke her consent to receive automated calls. In reversing and remanding the decision of the district court, the Eleventh Circuit further recognized that an issue of material fact remained as to whether the plaintiff's statements during the Oct. 13, 2014, conversation constituted a revocation of consent to be called in the morning and during the work day.

The Eleventh Circuit first concluded that the TCPA allows for partial revocation of consent. In reaching this decision, the Court considered its prior decision in Osorio, whereby the Court inferred from statutory silence that Congress intended for the TCPA to incorporate the common law understanding of consent, which generally allows for oral revocation. The Court further recognized that the common law understanding of consent is subject to limitations and restrictions, and that such limited consent finds support in other areas of federal law, including the consent provision of the federal wiretapping statute and the Fourth Amendment's provisions regarding limited consent to search. The Eleventh Circuit thereby concluded that the TCPA allows a consumer to provide limited consent for the receipt of automated calls. A natural extension of this doctrine would allow a consumer to partially revoke unlimited consent as to future automated calls.

The Court next considered whether the plaintiff's statement in October 2014 constituted a partial revocation of consent preventing subsequent automated calls to her in the morning and during work hours. Relying on language from the Restatement (Second) of Torts, the Court ultimately concluded that a reasonable juror could find that, on Oct. 13, 2014, the plaintiff partially revoked her consent to receive automated calls in the morning and during the work day.

The Court did suggest that, in lieu of tracking partial revocation of consent, a company could decide to treat the partial revocation as a full revocation and refrain from placing additional automated calls to the consumer.

Takeaways and Considerations

A critical restraint on the Court's broad interpretation of a consumer's ability to partially revoke consent is a contractual provision to the contrary that limits the scope, manner or method of revocation. For example, a contractual provision between the caller and consumer requiring that revocation be in writing and sent to a specified address should be enforceable. When consent to be contacted is given as consideration in a bargained-for exchange, "consent," as that term is used in the TCPA, is not freely revocable. See Reyes v. Lincoln Auto. Fin. Srvcs., 861 F.3d 51, 58 (2d Cir. 2017), finding that consent to another's actions can become irrevocable when it is provided in a legally binding agreement, in which case any attempted termination is not effective.

Nonetheless, in light of the Court's broad reading of the TCPA, companies should take a close look at their automated telephone dialing system policies to confirm legal compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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