Eighth Circuit Reverses Summary Judgment, Directs Trial Court to Determine Whether Consent Was Revoked

In an unpublished, per curiam decision, the Eighth Circuit recently reversed the entry of summary judgment in favor of a defendant and directed the district court to address whether the plaintiff had revoked his consent to being called on his cell phone. Brenner v. Am. Ed. Servs., No. 14-1340, 2014 U.S. App. LEXIS 18416 (8th Cir. Sept. 26, 2014).

Joshua Brenner brought suit against American Education Services (“AES”), a company that services private student loans. He alleged, among other things, that AES had violated the TCPA by repeatedly calling his cell phone using an automated telephone dialing system without his consent and after he requested in writing that AES stop calling him. In granting AES’s motion for summary judgment, the Eastern District of Missouri found that Brenner voluntarily provided his cell phone number “on numerous occasions” when he submitted letters and other documents to AES, including forbearance forms with language that informed him that he did not have to provide his telephone number and stated that AES was authorized to make calls using an automated telephone dialing system. It explained that Brenner had explicitly agreed to “the exact type of communications of which he now complains.”

Even though the three-judge panel of the Eighth Circuit agreed that Brenner expressly consented to receive the calls at issue, it reversed on the grounds that the district court failed to address Brenner’s claim that he revoked his consent. According to the court, “[i]t is undisputed that AES continued to make calls to Brenner’s cell phone after [July 2012]. Thus, if Brenner effectively revoked his consent, summary judgment was not proper.”

The TCPA does not directly address whether or how consumers may revoke consent to receive non-telemarketing telephone calls, and as the Eighth Circuit observed in its decision, it has also not yet addressed whether or how consent may be revoked. As we discuss in a previous post, courts have split on this issue. See, e.g., and compare Chavez v. Advantage Group, 959 F. Supp. 2d 1279 (D. Colo. 2013) (holding that prior express consent could not be withdrawn under the TCPA), and Saunders v. NCO Financial Systems, Inc., 910 F. Supp. 2d 464 (E.D.N.Y. 2012) (finding “no provision in the TCPA that allows withdrawal of a voluntarily-given, prior express consent to call a cell phone number”), with Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (determining from the TCPA’s silence regarding revocation of consent that Congress sought to incorporate the common law concept of consent, which generally allows oral revocation), and Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3rd Cir. 2013) (noting the TCPA’s silence on the right to revoke consent and focusing on the common law concept of consent to determine a consumer does have a right to revoke consent).