b'to revoke that consent through a fax her attorneys sentor a cellphone. Callers relying on the TCPA exemptions to the defendant after she fell behind in her payments.must implement appropriate opt-out mechanisms The Eleventh Circuit was unpersuaded by the argumentfor consumers. Like the frequency requirements, the that unilateral revocation of consent given in a legallyparticular opt-out requirements depend on whether the binding agreement is permissible because it comportssubject calls are placed to landlines or wireless phones. with the consumer-protection purposes of the TCPA.For example, callers placing exempt calls to landlines It held that the TCPAs silence regarding the meansmust adopt sufficient internal do-not-call procedures of providing or revoking consent reflects Congressthat were previously required only for telemarketing intent to incorporate the common law concept thatcalls. Financial institutions placing exempt calls to consent becomes irrevocable when it is integrated intocellphones must honor opt-out requests for such calls a binding contract. The Eleventh Circuits decision wasimmediately. The FCCs orders also provide guidance consistent with that of the Second Circuit in Reyes v.for callers who believe that their calls have been Lincoln Auto. Fin. Servs., No. 16-2104, which also helderroneously blocked to challenge that determination. that the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange toCircuits Continue to Split Regarding the Number of unilaterally revoke that consent.Texts or Calls Sufficient to Confer Article III StandingIn March, a federal district court in the Eleventh Circuit Ninth Circuit Holds that Prior Express Consent Mustjoined the discourse regarding how many unsolicited Come from Current Cellphone Subscriber text messages or phone calls must be received by a In June, the Ninth Circuit issued its decision inTCPA plaintiff to confer standing, when it held that a N.L.v.Credit One Bank, N.A., No. 19-15399, holdingplaintiffs allegations of loss of privacy from receiving that the prior express consent required by the TCPAone unwanted text message per month over a for autodialed calls to cellular phones must come fromthree-month period were not sufficient to confer the the current cellphone subscriber, and not merely theplaintiff with a concrete injury-in-fact, a requirement for intended recipient of the call. The decision stemmedArticle III standing. Eldridge v. Pet Supermarket, Inc.,from a banks placement of automated calls to aNo. 18-22531. The Eldridge courts decision was phone number that had at one point been assignedconsistent with the Eleventh Circuits 2019 ruling in to a bank customer who had provided consent to beSalcedo v. Hanna, No. 17-14077, in which it held that called. However the phone number was subsequentlythe recipient of a single text message did not have reassigned, and when the bank called the number tostanding to sue in federal court because he had not collect past-due payments, it reached an unintendedsuffered an injury-in-fact, thereby creating a circuit split recipient. Notwithstanding that the previous cellphonebetween the Eleventh and Ninth Circuits. The single subscriber had authorized calls to that number, the Ninthtext message the plaintiff received, the Salcedo court Circuit found that the consent of the third-party debtorhad reasoned, did not injure him because it did not cost could not immunize the defendant from liability under thehim any money, or deprive him of the full use of and TCPA for its unauthorized calls to the plaintiff. The Ninthaccess to his cell phone. The Ninth Circuit in VanPatten Circuits decision was consistent with prior decisionsv. Vertical Fitness Group, LLC, No. 14-55980, had from the Third, Seventh, Eleventh, and D.C. Circuits. reached the opposite conclusion earlier in 2019 when it found that two unsolicited text messages constituted an FCCs Year-End Orders Place New Limitations oninjury in fact. In addition to the Eldridge court, several Automated and Prerecorded Calls other federal district courts in 2020 have come down In December, the FCC issued two orders, FCC 20-186on the side of either Salcedo or Van Patten, reinforcing and FCC 20-187, to implement certain restrictions onthe circuit split between the Ninth and Eleventh existing exemptions to the provisions of the TCPACircuits.See Trim v. Mayvenn, Inc., No. 20-3917;relating to automated calls and text messages andAvedyan v.CMRConstr. & Roofing, LLC, No. 20-81362. certain calls to residential landlines, and to expand itsIn the second half of 2020, federal district courts in efforts to allow telephone carriers to block what thethe Fourth and Fifth Circuits issued decisions that FCC describes as illegal robocalls. Pursuant to thetended to provide support for the Ninth Circuits view. In new orders, callers relying on the TCPA exemptionsNovember, the court in Williams v. Myler Disability, LLC, to place automated or prerecorded calls or textsNo. 20-0275, found that a TCPA plaintiffs allegations without prior consent will now be restricted in howof receiving two unsolicited text messages were many exempt calls they can make to consumers.enough to establish standing. Likewise, the court in Those frequency limitations depend on the particularCunningham v. Radius Global Sols., LLC, No. 20-0294, exemption relied uponthe number of permissiblefound that the plaintiffs receipt of a single missed call calls may be different depending on the purpose of theconstituted a sufficient injury-in-fact. call, and whether the phone number called is a landline 26'