11th Cir. Holds TCPA Allows Partial Revocation of Consent

The U.S. Court of Appeals for the Eleventh Circuit recently held the Telephone Consumer Protection Act permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system (“ATDS”), and thereby only receive calls at certain times of the day or on certain days.

Accordingly, the Eleventh Circuit reversed the trial court order granting summary judgment in favor of the defendant, and ruled that whether the consumer had partially revoked consent was a question of fact for a jury.

A copy of the opinion in Schweitzer v. Comenity Bank is available at:  Link to Opinion.

The plaintiff consumer applied for and was issued a credit card by the defendant bank. In her application, the consumer provided her cellular phone number to the bank, and initially consented to allow the bank to call that number.

After the consumer fell behind on her credit card payments, the bank began placing calls to her cellular phone using an ATDS falling within the purview of the TCPA.

On a call on Oct. 13, 2014, the consumer stated: “And if 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.”

The bank employee replied that “[i]t’s a phone system.  When it’s reporting two payments past due, it’s a computer that dials.  We can’t stop calls like that.”

Five months later, on March 19, 2015, a bank employee again called the consumer, who twice told the employee to stop calling.  The bank did not place any more automated calls to the consumer after that conversation.

The consumer subsequently sued the bank for violating the TCPA.  She alleged that during the Oct. 13 conversation she revoked her consent to have the bank make calls to her cellular telephone using an ATDS. The consumer further alleged that the bank made over 200 automated calls to her cellular phone between October 2014 and March 2015.

The trial court granted summary judgment in favor of the bank, finding the bank “did not know and should not have had reason to know that [the consumer] wanted no further calls.”  The trial court further found 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.”

The consumer appealed.

The bank made two arguments on appeal defending the trial court’s ruling.  First, the bank argued that the TCPA does not permit partial revocations of consent.  Second, the bank argued that even if partial consent were possible, the consumer’s statements on Oct. 13 did not constitute revocation of her consent to be called in the morning or during work hours.

With respect to whether the TCPA permits partial revocations of consent, 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 explained that it reasoned that “based upon statutory silence regarding the means for providing or revoking consent, we could infer that Congress intended for the TCPA to incorporate the common-law understanding of consent, which generally allows for oral revocation,” and “allowing consent to be revoked orally is consistent with the government interest articulated in the legislative history” of the TCPA.

The Eleventh Circuit then stated that “[b]ecause the TCPA is silent as to the partial revocation of consent, our analysis is again 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.”  Thus, “if an actor exceeds the consent provided, the permission granted does not protect him from liability for conduct beyond that which is allowed.”

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.

The Court therefore held “that the TCPA allows a consumer to provide limited, i.e., restricted, consent for the receipt of automated calls.  It follows that unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA.”

The Eleventh Circuit next addressed the bank’s argument that a recent declaratory ruling by the FCC precludes partial revocation of consent under the TCPA.  See In the Matter of Rules & Regulations Implementing the TCPA, 30 F.C.C. Rcd. 7961 (2015).

The Court first quoted language from the ruling, which concluded that “[n]othing in the language of the TCPA or its legislative history supports the notion that Congress intended to override a consumer’s common law right to revoke consent.”  Thus, the Eleventh Circuit determined that the ruling “does not cast doubt on our reliance on common-law principles.”

The Court further noted that the language the bank relied on that “‘consumers may revoke consent in any manner that clearly expresses a desire not to receive further messages,’ was used by the FCC in rejecting a creditor’s claim that express consent, once given, cannot be revoked at all under the TCPA.  This language cannot be read out of context to forbid the partial revocation of consent.”

Having concluded a consumer may partially revoke her consent, the Eleventh Circuit next turned to whether the consumer did partially revoke her consent on the Oct. 13 call.  The Court determined that “[t]his issue is close, but we conclude on this record the matter of partial revocation is for the jury.”

The Eleventh Circuit therefore held that summary judgment was inappropriate, as “a reasonable jury could find that [the consumer] partially revoked her consent to be called in ‘the morning’ and ‘during the workday’ on the Oct. 13 phone call with a [bank] employee.”

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Jeffrey Karek practices in Maurice Wutscher's Commercial Litigation, Consumer Credit Litigation, and Appellate groups. He has substantial experience in defending consumer finance lawsuits in both state and federal trial courts, and on appeal. Such litigation includes allegations brought under TILA, HOEPA, RESPA, FDCPA, TCPA, FCRA, and state consumer protection statutes, including in the defense of putative class actions. Jeff received his Juris Doctor from the University of Michigan Law School, and graduated magna cum laude with a Bachelor of Business Administration degree from Western Michigan University.