TCPA Update: The state of the law on revoking consent to call

The Telephone Consumer Protection Act (TCPA) prohibits the use of automated telephone calls absent “prior express consent” from the called party. Obtaining “express consent” in the first instance is not overly challenging. In a 1992 Order, the FCC stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (Oct. 16, 1992). Since the 1992 Order, interpretations of “prior express consent” have narrowed slightly such that consent is effective only if it “relates to the same subject matter as is covered by the challenged calls or text messages.” Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1047, 1044-45 (9th Cir. 2017).
In the case of debtors and creditors, the FCC has interpreted “prior express consent” as being satisfied where the called party provides their wireless number in connection with an existing debt and the autodialed calls are made regarding that debt. The debtor need not have provided their number directly to the creditor; consent is satisfied if the creditor obtains the number from an intermediary. Moreover, the debtor does not have to provide the number for a particular purpose or specifically consent to autodialed calls. As long as the debtor consents to be called in connection with the debt, the “prior express consent” provision of the TCPA is satisfied. But, one may ask, is that consent eternal?

The TCPA is silent as to revocation of consent. However, a majority of courts have held that consumers may revoke their prior express consent.  See, e.g., Van Patten, 847 F.3d at 1047; Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013) (debtor could revoke consent under TCPA); Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (same). Most recently, in Ginwright v. Exeter Finance Corp., 280 F. Supp. 3d 674 (D. Md. 2017), the District of Maryland denied a creditor’s motion for summary judgment, finding that consent was revocable, and that the question of whether consent had been revoked was an issue of fact for the jury. Each of these courts—whether considering debtors or consumers in general—based their decision on three main ideas. First, revocable consent is consistent with the purpose of the TCPA. The TCPA is a remedial statute that was “passed to protect consumers,” and any silence or ambiguity should be construed in favor of consumers. Second, the common law concept of “consent” provides that it may be withdrawn.  Because the TCPA does not define consent, the common law meaning is instructive. Third, the FCC has ruled that under the TCPA, a consumer may revoke consent “at any time and through any reasonable means.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (2015 Declaratory Ruling), 30 FCC Rcd. 7961, 7996 ¶ 62 (2015).  Significantly, the D.C. Circuit recently upheld the FCC’s ruling with respect to revoking consent. ACA International v. FCC, 885 F.3d 687, 709 (D.C. Cir. 2018).
But concluding that consent is revocable is only half the battle. If consent is revocable, when is it effectively revoked? What are “reasonable means” for revoking consent? The FCC has said that consent may be revoked in “any manner that clearly expresses a desire not to receive further messages[.]” 30 FCC Rcd. 7961, 7996 ¶ 63 (2015). The recent decision in Ginwright is instructive. In that case, the plaintiff listed his phone number on a credit application as part of a car purchase. The application specifically provided consent to debt collection calls. But, after his loan became overdue, the plaintiff claimed that he expressly demanded, on five separate calls, that the creditor “stop calling [his] phone.”  The court found that where loan servicing records reflected that the debtor did not give affirmative consent to being called on multiple occasions, there was at least some support for his contention, and that if “a factfinder were to determine that Ginwright had revoked his consent, he could succeed on his TCPA … claims.” On the other hand, the Ginwright court denied the plaintiff’s motion to certify a class, finding that issues of consent and revocation of consent would be too individualized to resolve on a class-wide basis.
By contrast, in Van Patten, the Ninth Circuit upheld the district court’s grant of summary judgment, finding that the consumer did not revoke his prior express consent. There, the consumer argued that he revoked his consent to be contacted by a gym when he cancelled his gym membership. The court explained that “[r]evocation of consent must be clearly made and express a desire not to be called or texted,” and “no evidence in the record suggest[ed] that [the consumer] told Defendants to cease contacting him on his cell phone.” In short, the gym was not required to infer that the plaintiff’s cancellation of his gym membership was also meant to revoke his consent to receiving calls or texts from the gym.
It is clear from these decisions that the revocation must be expressly made. The means by which that express revocation is given, however, remains unclear. In ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), the court upheld the FCC’s broad “any-reasonable-means” standard.  This leaves consumers with a wide range of options to effectively revoke consent—and leaves a potentially narrow path to summary judgment on the issue.
For businesses seeking to afford themselves more clarity and predictability when it comes to revocation of consent, there is at least one strategy available. While a business may not unilaterally impose a specific procedure for revoking consent, a business may enter into a bilateral agreement with a customer that includes an agreed-upon mechanism for revoking consent. As the D.C. Circuit observed in ACA International, nothing in the FCC’s rules prevents parties from agreeing upon revocation procedures. Id. at 710.
With the ball in the consumer’s court when it comes to revocation, it appears that callers will face heightened exposure to TCPA liability.  With this in mind, callers would be wise to heed the D.C. Circuit’s advice and avoid potential violations “by making available clearly-defined and easy-to-use opt-out methods” or by contractually agreeing to specific revocation procedures up front.