As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere.
For example, two district courts outside of the Second Circuit recently followed Reyes and entered summary judgment against the plaintiffs because—like any other term of a bilateral contract—a contract’s consent provision cannot be changed without the counterparty’s approval. See Medley v. Dish Network, No. 16-2534, 2018 U.S. Dist. LEXIS 144895 (M.D. Fl. Aug. 27, 2018) (“Nothing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law . . . . Thus, Medley granted prior express consent as part of a contractual provision that could not be unilaterally revoked.”); Few v. Receivables Performance Mgmt., No. 17-2038, 2018 U.S. Dist. LEXIS 134324 (N.D. Ala. Aug. 9, 2018) (Bowdre, C.J.) (“Ms. Few could not unilaterally revoke her consent to receive debt-collection calls because she agreed to provide that consent as part of a bargained-for exchange . . . . [B]ecause she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent.”); see also Barton v. Credit One Fin., No. 16-2652, 2018 U.S. Dist. LEXIS 72245 (N.D. Oh. April 27, 2018) (following Reyes and finding that “a consumer who agrees to be contacted by telephone as part of a bargained-for transaction” cannot “unilaterally revoke that consent”).
But just a few days later, two different district courts outside of the Second Circuit rejected Reyes and found that—black letter law be damned—a contract’s consent provision can be changed without the counterparty’s approval. See Rodriguez v. Premier Bankcard, No. 16-2541, 2018 U.S. Dist. LEXIS 149225 (N.D. Oh. Aug. 31, 2018) (holding that a “contractual relationship” does not exempt a defendant “from the TCPA’s requirements, even if [the plaintiff’s] consent is part of the consideration for the parties’ . . . agreements.”) (internal quotation marks omitted); Tillman v. Hertz Corp., No. 16-4242, 2018 U.S. Dist. LEXIS 147945 (N.D. Ill. Aug. 29, 2018) (“Regardless of how well-reasoned Reyes may be, . . . [t]he Seventh Circuit’s precedent holds that consent [can] be revoked at any time and through any reasonable means.”) (internal quotation marks omitted).
These more recent decisions are wrong, albeit for different reasons. As for Tillman, that court believed that its hands were tied by the Seventh Circuit’s decision in Blow v. Bijora, Inc., 855 F.3d 793 (7th Cir. 2017), which relied on a FCC pronouncement that consent can be revoked “at any time and through any reasonable means.” While it is true that the FCC said that in 2015, it is important to note that the FCC was not addressing bilateral contracts in which consent was part of the bargained-for exchange. Rather, it made this statement in the context of gratuitous, extra-contractual consent. Indeed, the D.C. Circuit explained earlier this year that the FCC did not intend to affect agreements regarding consent and revocation, and early indications from the FCC suggest that it will use its recent request for comments as an opportunity to square its guidance with the approach laid out in Reyes. The Tillman court was apparently unaware of those facts, as briefing on the motion closed before the D.C. Circuit issued its opinion in ACA Int’l. (Defendants can, at least, take some comfort in the Tillman court’s finding that it was “highly unlikely” that the plaintiff could ever obtain certification, given the “obvious predominance of individual facts concerning consent and revocation.”)
And as for Rodriguez, the court held that a contractual consent provision can be unilaterally modified unless the provision specifically states otherwise. But that turns black letter law on its head, for it is the nature of the contract, not the wording of the contract, that prevents its unilateral modification. In other words, the default rule should be that contractual consent cannot be unilaterally revoked, not that it can be.
Rodriguez also lacks any limiting principle. Indeed, when taken to its logical extreme, it would seemingly allow any consumer to avoid any contractual provision after the fact. In reaching that result, Rodriguez cites pre-ACA Int’l cases for the proposition that TCPA consent is not “subject to contract principles” and appears to read into the statute an almost absolute right of revocation. But that is wrong for at least three reasons.
First, Rodriguez states that Reyes misread the Third Circuit’s ruling in Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 273 (3d Cir. 2013) by limiting its holding to the “voluntary consent” context. But the contractual relationship at issue in Gager did not involve any express consent to call provision. Thus, the core question confronted by the Reyes and Rodriguez courts—application of black letter contract law to an express contractual consent provision—was never addressed in Gager.
Second, Rodriguez asserts that Reyes is contrary to the FCC’s July 2015 Declaratory Ruling, which it describes as the FCC’s “default rule against limitation on revocation.” The court tacitly acknowledges and then proceeds to ignore the fact that the FCC recently clarified in ACA Int’l that the ruling “precludes unilateral imposition of revocation rules by callers; it does not address revocation rules mutually adopted by contracting parties.” Rodriguez sidesteps this dilemma by determining that the parties did not mutually agree to any revocation procedures because the contract’s express consent provision does not use the magic word “revocation.”
Third, Rodriguez posits that by allowing parties to mutually agree to revocation rules, companies will “contract around the TCPA” and the purpose of the TCPA will be circumvented. The court’s paternalistic view that contracting parties are incapable of determining what kind of communications they want and do not want does not appear to be shared by the FCC, and in any event finds no support in the black letter law on which Reyes and its progeny are based.
The recent Medley and Harris decisions are helpful on these points, it should be noted, as they expressly reject the notion that the TCPA imbues consumers with an absolute right of revocation and somehow alters the common law rule that a party to a contract can unilaterally revoke any contractual provision that does not specifically say otherwise.
Stay tuned as this is a quickly developing area—not only because courts continue to weigh in, but also because the FCC is working through the public comments it solicited after ACA Int’l in order to provide consumers and businesses with much-needed clarity on this and other important issues regarding the proper interpretation and implementation of the TCPA.
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