Revoking Prior Express Consent Under the TCPA

Under the Telephone Consumer Protection Act (TCPA) calls made to cell phones using automatic dialing systems or a prerecorded voice without the prior express consent of the party called are prohibited. However, if prior express consent is given, it can be revoked at any time provided it is revoked in a proper manner. How prior can be revoked varies from jurisdiction to jurisdiction.

The U.S. Court of Appeals for the Third Circuit ruled in Gager v. Dell Financial Services LLC that express consent to be called can be revoked at any time. In making this ruling the court rejected the defense that once a cell phone number has been provided by the debtor that a debt collector could call him or her at that number by using an autodialer or prerecorded messaging system until the debt is paid.

In this case, the plaintiff, Gager, provided her cell phone number to Dell Computer when she was applying for online credit to purchase a new computer. She fell behind on payments and Dell used an auto dialer to call her to determine when her account would be brought current. Gager sent Dell a letter demanding that they stop calling her. The letter was disregarded by Dell and continued to call her cell phone. Gager sued under the TCPA and the trial court found that her consent could not be revoked and dismissed her case.

The Court of Appeals reversed the decision and held that consent could be revoked at any time. There is not an exception for the debtor/creditor relationship. The court used three factors when coming to its decision:

• Under common law consent can be revoked;
• If there is any ambiguity in the TCPA it should be resolved in the consumer’s favor; and
• An FCC decision, SoundBite Communications, Inc., 27 FCC Rcd. 15391, had suggested that revocation of consent was possible

The court emphasized that this decision does not prohibit Dell from contacting Gager as long as the call was made by dialing manually.

In another case out of the Eastern District of Wisconsin, Anderson v. Harris & Harris, Ltd, the plaintiff alleged that the defendant violated the TCPA by using an automated telephone dialing system when making collections calls to him. The Court however, found that there were no TCPA violations. In coming to this determination, the Court focused on whether:

• The plaintiff provided their consent to be called; and
• Whether he revoked that consent

In the Court’s opinion there was “no doubt that [the plaintiff] consented to receive the phone calls.” The underlying creditor had received the plaintiff’s phone number for the plaintiff himself. Since the plaintiff consented to be called by the underlying creditor, that consent passed to the debt collector when it attempted to collect on the debt.

With regards to revocation of consent, the Court found that regardless of whether consent was revocable, the plaintiff attempted to revoke via voice mail. The plaintiff had placed on his outgoing voice mail a message that revoked all consent for TCPA purposes. This attempt at revocation was insufficient under the TCPA. Since the debt collector was using an auto dialer to places calls to the plaintiff’s phone, the debt collector never received the message. The Court stated that there was not any authority to support the argument that an outgoing message would be sufficient to revoke consent. Therefore, there was no TCPA violation.

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.

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 or visit our website at http://www.krohnandmoss.com/.