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11th Circuit: Consumers May Partially Revoke Their Consent under the TCPA

On August 10, 2017, the Eleventh Circuit Court of Appeals held that the Telephone Consumer Protection Act (“TCPA”) permits consumers to partially revoke their consent to receive calls from an automatic telephone dialing system (or “autodialer”).

As background, the TCPA prohibits: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express written consent; and (2) making any non-emergency call using an autodialer or an artificial or prerecorded voice to a wireless telephone number without prior express consent.  In addition, if such call to the wireless telephone number includes or introduces an advertisement or constitutes telemarketing, the prior express consent must be in writing. See 47 C.F.R. § 64.1200.

The plaintiff consumer (“Consumer”) applied for and was issued a credit card by the defendant bank (“Bank”).  As part of the credit card application process, the Consumer provided her cellular phone number and initially consented to receiving autodialed calls from the Bank on that number.

After the Consumer fell behind on her credit card payments, the Bank started calling her cellular phone using an autodialer.  On one of those calls (the “October 13th Call”), the Consumer told the Bank: “[I]f you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.  My phone’s been ringing off the hook with you guys calling me.”  After that call, the Bank continued calling the Consumer for five months (among other times, in the morning and during work hours) with an autodialer.

The Consumer sued the Bank for violating the TCPA and alleged that, based on the statements that she made on the October 13th Call, she had revoked her consent to have the Bank call her cellular phone in the morning and during work hours.  The trial court granted summary judgment in favor of the Bank, finding that the Bank “did not know and should not have had reason to know that [the Consumer] wanted no further calls.”  The trial court also noted that the Consumer did not “define or specify the parameters of the times she did not want to be called,” and as a result “no reasonable jury could find that [she] revoked consent to be called.”

On appeal, the Bank made two arguments to support the lower court’s ruling.  First, the Bank argued that the TCPA does not permit partial revocations of consent.  Second, the Bank stated that even if partial revocation of consent is possible, no reasonable jury could find that the Consumer’s statements constituted a revocation of her consent to be called in the morning or during work hours.

The Eleventh Circuit first noted that “[a]lthough the TCPA is silent on the issue of revocation, our decision in [Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014)] holds that a consumer may orally revoke her consent to receive automated calls.”  The Court then stated that “[b]ecause the TCPA is silent as to the partial revocation of consent, our analysis is informed by common-law principles.”  At common law, “consent is a willingness for certain conduct to occur,” and “[s]uch willingness can be limited, i.e., restricted.”  Moreover, the Eleventh Circuit noted that the notion of limited consent finds support in other areas of federal law, such as the Fourth Amendment, which allows a person to provide limited consent to a search.  For the foregoing reasons, the Court ultimately held that the “TCPA allows a consumer to provide limited, i.e., restricted, consent for the receipt of automated calls . . . [and] unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA.”

The Eleventh Circuit also rejected the Bank’s second argument and held that summary judgment was inappropriate because, in the Court’s opinion, a reasonable jury could find that the Consumer partially revoked her consent to be called in the morning and during work hours.

The Eleventh Circuit’s full opinion can be found at: http://media.ca11.uscourts.gov/opinions/pub/files/201610498.pdf.