This article was published in Law360 on January 22, 2015.
The Telephone Consumer Protection Act permits companies to make telephone solicitations using autodialers and pre-recorded messages once they have a consumer’s consent to do so. Many authorities have suggested that such consent can later be revoked. However, it remains an open issue whether a consumer can waive his or her right to revoke consent, contractually or otherwise.
The Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (the “TCPA”), regulates telephone solicitations made using an automated telephone dialing system (also referred to as an “autodialer” or “ATDS”) and pre-recorded messages. In February 2012, the Federal Communications Commission (FCC) revised its rules and regulations implementing the TCPA to further “protect consumers from unwanted telemarketing calls” while at the same time acknowledging that wireless services offer access to information that consumers find highly desirable. The revised rules and regulations require telemarketers to obtain prior express written consent before making autodialed or pre-recorded telemarketing calls.1 The Ninth Circuit, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009), found that the term “call,” as used in the TCPA, includes text messages. Although the TCPA requires that a consumer give consent prior to receiving telemarketing calls or messages, the TCPA and the FCC’s implementing rules and regulations are silent as to the consumer’s ability to then change his or her mind and later revoke consent. Most authorities and courts agree that, under the TCPA, consumers have the right to revoke previously given consent to be called using an ATDS or pre-recorded message (also referred to as “opting out”). More recently, however, courts have been asked to decide whether a consumer is permitted to revoke this consent where it was previously given as part of an independent contractual arrangement, or whether that right to revoke can be waived.
In 2012, the FCC issued a declaratory ruling in In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc., 27 FCC Rcd. 15391 (Nov. 26, 2012), in which the FCC, by determining that it was permissible to the send a single text message confirming a user’s desire to opt out, implied that the ability for consumers to revoke consent is built into the protections of the TCPA. The Third Circuit, in Gager v. Dell Financial Services, LLC, 727 F.3d 265, 269 (3rd Cir. 2013), interpreted the SoundBite decision as evidence that the FCC endorses a consumer’s right to revoke his or her prior consent.
The Third Circuit’s decision in Gager is one of two Circuit Court decisions—along with the Eleventh Circuit in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1254-56 (11th Cir. 2014) —that address a consumer’s right to revoke prior consent to receive calls using autodialers and pre-recorded messages. In both Gager and Osorio, the courts determined—for virtually identical reasons—that a consumer has the ability to revoke his or her previously given consent under the TCPA. Notably, both courts focused upon the common law principle that consent is revocable as well as the fact that the TCPA is a consumer-friendly statute.
The Tenth Circuit has only ever suggested in dicta that prior-given consent is revocable under the TCPA. In Sartori v. Susan C. Little & Associates, P.A., 571 F. App’x 677, 683 (10th Cir. 2014), the Court stated that the consumer had not revoked his consent, thus implying—but not stating outright—that his consent was revocable in the first place.
The remaining circuits—including the Ninth Circuit and the Second Circuit—have not yet weighed in on this issue. Nevertheless, the majority of District Courts that have spoken to this issue—including the Southern District of California in Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D. Cal. June 25, 2014) and Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. May 20, 2014) —agree that consumers are permitted to revoke their prior-given consent under the TCPA. A small number of District Courts—notably the Eastern District of New York in Saunders v. NCO Financial Systems, Inc., 910 F.Supp.2d 464, 468 (E.D.N.Y. 2012), and the District of Colorado in Chavez v. Advantage Group, 959 F.Supp.2d 1279, 1283 (D.Colo. 2013)—have gone the other direction and have determined that consent is not revocable under the TCPA. However, these opinions appear to be in the minority, and the general trend appears to favor a finding of the right to revoke prior-given consent.2