On August 10, 2017, the U.S. Court of Appeals for the Eleventh Circuit held that the Telephone Consumer Protection Act (TCPA) “permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system.” The judge reasoned that, “In law, as in life, consent need not be an all-or-nothing proposition.”
In general, the TCPA prohibits any person from making any call using an automatic telephone dialing system (ATDS) or prerecorded message to any telephone number assigned to a cell phone or other service for which the called party is charged without the prior express consent of the called party. Consumers may revoke their consent orally or in writing.
In this case, Schweitzer v. Comenity Bank, No. 16-10498, 2017 U.S. App. LEXIS 14769 (11th Cir. Aug. 10, 2017), the plaintiff applied for a credit card and provided her cell phone number as part of the application, which satisfied consent for Comenity to contact the plaintiff. When plaintiff failed to make payments on her account, Comenity placed collection calls to her cell phone.
During one of these calls, plaintiff said, “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 ringing off the hook with you guys calling me.” Comenity continued to call plaintiff until she explicitly told Comenity to stop calling. Plaintiff then sued Comenity for the calls she received after her initial statement.
Relying on the common-law concept of revocation, the district court ruled that Comenity did not know nor had to reason to know that plaintiff did not want further calls as she did not define or specify the parameters of the times she did not want to be called and “no reasonable jury could find that she revoked consent to be called.”
But the Eleventh Circuit disagreed and held that the TCPA allows a consumer to provide limited, i.e. restricted consent for the receipt of ATDS calls. The court noted that “[w]e think it logical that a consumer’s power under the TCPA to completely withdraw consent and thereby stop all future automated calls encompasses the power to partially withdraw consent and stop calls during certain times.”
This case is a victory for plaintiffs who now can claim equivocal “do-not-call” requests are “partial” revocations of prior express consent. It is a prime example of why all personnel should be trained to identify and honor any form of a “do-not-call” request as required by law, and to err on the side of removing consumers from calling lists in the face of equivocal responses, or at the very least asking for clarification from the consumer.