Alert September 03, 2013

Third Circuit Holds TCPA Allows Revocation of “Prior Express Consent”

The United States Court of Appeals for the Third Circuit reversed dismissal of an action under the Telephone Consumer Protection Act by plaintiff alleging that defendant, a lender, violated the TCPA by calling her cellular phone through the use of an automated telephone dialer system after she revoked consent to be called. After defaulting on a line of credit granted by defendant, defendant began collection calls to plaintiff using an automated telephone dialer system on the phone number provided in plaintiff’s credit application. Although plaintiff requested that defendant cease calling her, defendant continued its collection efforts. Plaintiff filed suit alleging that defendant had an obligation under the TCPA to cease all autodialed called to her cellular phone once she had withdrawn her prior express consent to be contacted. Defendant filed a motion to dismiss arguing that plaintiff could not revoke her prior express consent. The lower court dismissed the action and plaintiff appealed.

In reversing the lower court’s decision, the Third Circuit rejected defendant’s argument that in the absence of express statutory authorization for revocation of prior express consent, such consent could never be revoked. In rejecting this argument, the Third Circuit noted that the common law concept of consent shows that it is revocable, the TCPA’s silence on revocation of consent should be “construed in favor of consumers,” and the Federal Communication Commission’s ruling in In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc., 27 FCC Rcd. 15391 (Nov. 26, 2012) provided further evidence that consumers could revoke their prior express consent. In the Soundbite decision, the FCC issued a declaratory ruling that a text message confirming an opt-out request was permissible under the TCPA. The Third Circuit held that the FCC’s conclusion in Soundbite was “clear”—consumers may revoke their prior express consent to be contacted using autodialing systems.

The Third Circuit also rejected defendant’s argument that even if the TCPA allows a consumer to revoke his or her prior express consent, the consumer must deliver instructions to the contrary at the time he or she fills out the application for credit—a temporal limitation on the right to revoke prior express consent. The Third Circuit noted that the TCPA’s legislative history seems to indicate that the statute was intended to protect consumer’s rights, not restrict them. Without express statutory language that places a temporal limitation on the right to revoke prior express consent, the Third Circuit read such silence in favor of the consumer “because it is a remedial statute.” Ultimately, the Court concluded that the TCPA allows a consumer to revoke his or her “prior express consent” to be contacted using an automated telephone dialing system on her cellular phone and there is no temporal limitation on such revocation right.