Third Circuit Holds That Consumers Can Withdraw Consent

LinkedInTwitterFacebookGoogle+Share

In a case of first impression in the courts of appeal, the Third Circuit recently expanded the rights of consumers under the TCPA, holding that consumers may revoke their consent to be called on their wireless phones and that there is no time limitation on when they may do so. Gager v. Dell Financial Services, LLC, — F.3d –, 2013 WL 4463305 (3d Cir. Aug. 22, 2013).

The TCPA is silent on whether consumers have the right to revoke consent.  In a 1992 ruling, the FCC stated that autodialed calls to landline and wireless phones are lawful so long as the consumer has granted “permission to be called at the number which they have given, absent instructions to the contrary.”  In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769, ¶ 31 (Oct. 16. 1992).  This ruling, however, did not explain whether such “instructions to the contrary” could be delivered after a consumer has expressly granted consent.  Before the Third Circuit’s decision in Gager, no circuit court had addressed the issue of consent revocation, and various district court decisions were in conflict.  See, e.g. and compare, Saunders v. NCO Fin. Sys. Inc., 910 F. Supp. 2d 464, 468-69 (E.D.N.Y. 2012) (holding that consent cannot be revoked under the TCPA); Kenny v. Mercantile Adjustment Bureau, LLC, No. 10-1010, 2013 WL 1855782 (W.D.N.Y. May 1, 2013) (same), with Gutierrez v. Barclays Group, No. 10-CV- 1012 DMS (BGS), 2011 U.S. Dist. LEXIS 12546, at *11-12 (S.D. Cal. Feb. 9, 2011) (consent can be revoked orally).

In 2007, Plaintiff Ashley Gager applied for a line of credit from Defendant Dell Financial Services, LLC (“DFS”) to purchase computer equipment.  In the space where the application required Gager to list her home phone number, Gager listed her wireless phone number and did not alert DFS that it was a wireless number and not a wire line home phone number.  DFS granted the line of credit to Gager, who then used it to finance the purchase of computer equipment.  Gager later defaulted on the debt, and DFS allegedly began using an ATDS to call the number that she had listed on her credit application seeking to collect the debt.  In December 2010, Gager sent DFS a letter asking it to stop calling her number, but did not state that the number was associated with a wireless phone.  Gager alleged that, after receiving her letter, DFS continued to use an ATDS to call her wireless phone more than 40 times over a three-week period.

Gager eventually filed suit in state court and asserted claims under the TCPA, which makes it unlawful:

to make any call (other than a call made for emergency purposes or made with the prior express consent of the called person) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service for which the called party is charged for the call.

47 U.S.C. § 227(b)(1)(A)(iii).  Specifically, she argued that Dell was required to stop using an ATDS to call her once she revoked her prior consent in her December 2010 letter.

DFS removed the case and moved to dismiss.  The district court granted DFS’s motion and held that Gager could not revoke her prior consent for three reasons:  (1) there is no language in the TCPA allowing for “post-formation revocation of consent”; (2) although Gager could have instructed DFS not to call her via an automated dialing system, she needed to give those instructions at the time she “knowingly released” her phone number to DFS; and (3) calls concerning debt collection are not subject to the TCPA.

Gager appealed to the Third Circuit, which framed the issues as follows: “(1) whether the TCPA allows a consumer to revoke her ‘prior express consent’ to be contacted via an automated telephone dialing system on her cellular phone and (2) if a revocation right exists, whether there is a temporal limitation on that right.”  In an opinion by Judge Roth and joined by Judges Fuentes and Shwartz, the court explained:

Our analysis of the scope of the TCPA is guided by the text of the statute, the FCC’s interpretation of the statute, the statute’s purpose, and our understanding of the concept of consent as it exists in the common law.  See Restrepo v. Att’y Gen. of U.S., 617 F.3d 787, 793 (3d Cir. 2010).  Considering all of these factors, we conclude that Gager has stated a plausible claim for relief because (1) the TCPA affords her the right to revoke her prior express consent to be contacted on her cellular phone via an autodialing system and (2) there is no temporal limitation on that right.

Although the TCPA does not expressly grant a right of revocation, the Third Circuit held that the absence of express statutory authorization “does not tip the scales in favor of a position that no such right exists.”  It reached this conclusion for three reasons.  First, it noted that common law consent can be withdrawn, and that “Congress did not intend to depart from the common law understanding of consent because the statute does not treat the term differently from its common law usage.”  Second, pointing out that the TCPA is “a remedial statute that was passed to protect consumers from unwanted telephone calls,” it reasoned that it was proper to interpret the statute’s silence on a revocation right in favor of the consumer.  Third, it pointed to dicta from a recent FCC decision that indicated consumers may revoke consent.

After finding that a right of revocation exists, the court employed a similar rationale in holding that there is no temporal limitation on that right.  Specifically, it reasoned that (1) nothing in the legislative history of the TCPA indicated that Congress intended there to be such a limitation, (2) the court should read the TCPA’s silence on the issue in favor of the consumer, and (3) the common law understanding of consent cuts against the argument that revocation of consent should be contingent on timing.

A copy of the Gager decision is available here.