Third Circuit Holds TCPA Allows Consumers To Revoke Prior Consent

TCPA

On August 22, the U.S. Court of Appeals for the Third Circuit held that the TCPA provides consumers the right to revoke their “prior express consent” to be contacted on their cellular phones by an automated telephone dialing system. Gager v. Dell Fin. Servs., LLC, No. 12-2823, 2013 WL 4463305 (3rd Cir. Aug. 22, 2013). The consumer provided her cellular number on an application for a line of credit where prompted to provide a home phone number and did not indicate it was her cellular phone number or that the financial services company should not use an automated dialing system to call the number. The consumer later sent a letter asking the company to stop calling the phone number she had provided on the application, but did not indicate that it was a cellular number. The district court dismissed the consumer’s complaint alleging that the company violated the TCPA by continuing to call after she asked the company to stop calling the number, holding that the consumer could not revoke her prior express consent for three reasons, among them the premise the TCPA does not provide for “post-formation revocation of consent” and that any contrary instructions regarding contact by an automatic dialing system had to be given at the time she provided the number. On appeal, the court held that the absence of an express statutory authorization for revocation of prior express consent in the TCPA’s provisions on autodialed calls to cellular phones does not mean no such right exists. The court held that the consent is revocable—with no limit on the time period for revocation—for three reasons: (i) the common law concept of consent shows that it is revocable; (ii) given the TCPA’s purpose to protect and not constrict consumers rights, any silence in the statute as to revocation should be construed in favor of consumers; and (iii) an FCC declaratory ruling in another matter that consumers may revoke their prior express consent to be contacted by autodialing systems delivering text messages. The court reversed the district court’s dismissal and remanded for further proceedings.