Third Circuit: TCPA Allows Consumers to Revoke Prior Express Consent

RobotYesterday, the Third Circuit Court of Appeals held that the Telephone Consumer Protection Act (47 U.S.C. § 227) allows a consumer to revoke her prior express consent to be called using an autodialer or prerecorded voice.

In its decision, Gager v. Dell Financial Services, the Circuit Court reversed a district court’s earlier finding that once a consumer provided consent to receive autodialed or prerecorded calls, a consumer cannot later revoke the consent.

Persons using autodialer technology or prerecorded messages are required by the TCPA to obtain the “called party’s” “prior express consent” before making their calls. While some types of calls are excepted from this requirement, telemarketing and debt collection calls are subject to the TCPA. 1

The decision does not provide guidance on whether the revocation of prior express consent can be made verbally or only in writing. However, the decision indicates the revocation can occur at any time. The decision is available here.

This decision is the first and only decision on the issue of revocation of prior express consent from a circuit court of appeals.

The TCPA was passed by Congress in 1991 in response to “[v]oluminous consumer complaints about abuses of telephone technology–for example, computerized calls dispatched to private homes . . .” requiring “federal legislation . . . . because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls.”

Although enacted more than 20 years ago, the TCPA only recently has resulted in a growing number of lawsuits. In 2010, 272 TCPA cases were either filed in or removed to the United States District Courts. The number exploded to 1101 cases in 2012. 2

 

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Notes:

  1. The TCPA also subjects debt collectors and telemarketers to different requirements, including the requirements concerning obtaining prior express consent.
  2. As of July 31, 2013, 1002 TCPA cases have been filed or removed to U.S. District Courts. Statistics courtesy of www.webrecon.com.

Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as legal counsel to DBA International and as chair of the ABA's Bankruptcy and Debt Collection Subcommittee. He serves on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law .