Express Consent Can be Revoked Under New TCPA Ruling

A new ruling out of the Third Circuit Court of Appeals has held that the Telephone Consumer Protection Act (TCPA) allows consumers to revoke their prior consent to being called through the use of an autodialer or prerecorded voice. In the case Gager v. Dell Financial Services, LLC, the common understanding of the TCPA by creditors and debt collectors was under the spotlight. This understanding was that once a debtor provided his or her cell phone number to creditors and debt collectors, they could use that number and send the owner autodialed or prerecorded messages for as long as the debtor owed the debt. However, the Third Circuit found otherwise.

In this case, Ashley Gager provided Dell Computer her cell phone number when she applied for credit online in order to purchase a new computer. When she got behind on her payments, Dell used an autodialer to call her to find out when she would become current on her account. Gager sent a letter to Dell to tell them to stop calling. The letter was disregarded by Dell and they continued to call about 40 times over a three week period. Gager then sued under the TCPA. The trial court dismissed her case, saying that the consent she gave could not be revoked.

However, the Third Circuit Court of Appeals reversed this decision. They held that this consent could be revoked at any time and that there is not a special exception for the debtor/creditor relationship. The court used three factors to base its decision

• Under common law, consent can be revoked;
• Ambiguities under the TCPA should be resolved in the consumer’s favor; and
• It was suggested in a recent FCC decision on another topic that revocation was possible

It was emphasized by the Court that Dell was not prohibited from calling Gager, but it must manually dial her unless she has provided a cease and desist request pursuant to state debt collection laws that apply.

This decision could have some serious consequences. Companies that use autodialers or prerecorded voice to contact its customer’s cell phones could face penalties of 500 USD to 1,500 USD per call. There could be millions, and potentially billions, of dollars in damages in class action cases.

While this decision is only controlling in Delaware, New Jersey, and Pennsylvania, it is still authoritative authority in other Circuit Courts which may choose to follow the Third Circuit’s example.

If you or a loved one have been subjected to these aggressive tactics by a creditor, please contact us immediately. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at http://www.krohnandmoss.com/.