The “DISH” on Unilateral Revocation: Another U.S. District Court Holds No Unilateral Revocation of Consent under the TCPA
On August 9, 2018, the United States District Court for the Northern District of Alabama agreed with the Second Circuit Court of Appeals decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d (2d Cir. 2017), which held that contractual consent to be contacted by an automatic telephone dialing system (“ATDS”) could not (and cannot) be unilaterally revoked because the consent formed part of a bargained-for exchange in the contract. The Second Circuit’s ruling was favorable for companies seeking clarification on consent revocation issues that exist with respect to claims brought under the Telephone Consumer Protection Act (“TCPA”).
The Northern District of Alabama’s decision in Few v. Receivables Performance Mgmt., No. 1:17-cv-02038, 2018 U.S. Dist. LEXIS 134324 (N.D. Ala. Aug. 9, 2018) is likewise favorable to companies facing claims based on purported unilateral revocation under the TCPA. In Few, the plaintiff entered into a contract with DISH, a satellite communications firm, pursuant to which DISH would provide the plaintiff with television and high-speed Internet services. Under the contract, the plaintiff provided DISH with a telephone number and authorized DISH “and/or any debt collection agency and/or debt collection attorney hired by DISH” to contact her at her number “to recover any unpaid portion of [her] obligation to DISH, through an automated or prerecorded messaging system.” Thereafter, DISH provided a debt-collection firm (the “Debt-Collection Company”) with the plaintiff’s phone number to assist with collection of an alleged debt on the plaintiff’s account. plaintiff answered one of the collection calls and notified the caller that she no longer wished to receive calls. The Debt-Collection Company continued to place calls to the plaintiff after this attempted revocation. In her suit, the plaintiff alleged that the Debt-Collection Company violated the TCPA by continuing to call her after she revoked consent. The Debt-Collection Company filed for summary judgment in which it argued that contractual consent could not be unilaterally revoked.
The court granted the motion for summary judgment. Applying the common law concept of consent (which allows the unilateral revocation of consent, but only in the absence of any contractual restriction to the contrary), the court held that because plaintiff “gave prior express consent to [the Debt-Collection Company] to make calls and, because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent.” Accordingly, the court held that the phone calls did not violate the TCPA. Few, 2018 U.S. Dist. LEXIS 134234 at *6.
Companies facing claims under the TCPA premised on unilateral revocation should continue to keep an eye on how various courts across the country are addressing and/or interpreting unilateral revocation in this context. While the Northern District of Alabama and the Second Circuit have rendered decisions (discussed above) holding that contractual consent to be contacted by an ATDS cannot be unilaterally revoked when the consent formed part of a bargained-for exchange in the contract, time will tell if other district and/or circuit courts hold similarly. Cf. Ammons v. Ally Fin., Inc., No. 3:17-cv-00505, 2018 U.S. Dist. LEXIS 108588 (M.D. Tenn. June 27, 2018) (in which the Middle District of Tennessee found Reyes to be “highly problematic” and rejected the rationale in that decision).