The U.S. Court of Appeals for the Eleventh Circuit held last week, in Medley v. DISH Network, LLC, that the Telephone Consumer Protection Act (TCPA) does not allow a consumer to unilaterally revoke consent to receive automated calls when such consent is given as part of a bargained-for exchange.  In its decision, the Eleventh Circuit expressed its agreement with the Second Circuit’s 2017 decision in Reyes v. Lincoln Automotive Financial Services which held that TCPA consent cannot be revoked when it is part of the bargained-for exchange memorialized in the parties’ contract.

The plaintiff in Medley entered into an agreement with DISH to receive satellite television services in exchange for monthly payments.  The agreement contained a pause feature that allowed customers to temporarily suspend satellite services for up to nine months for a monthly fee, with the original term of the agreement to be extended by the length of the suspension period.  As part of the agreement, the plaintiff provided her cellular telephone number and authorized DISH to contact her regarding her account or to recover any unpaid charges “through an automated or predictive dialing system or prerecorded message system.”  After several months, the plaintiff called DISH to cancel her services but, after learning of early termination fees that would apply, she elected to suspend her services using the pause feature.  

Thereafter, she filed a voluntary bankruptcy petition and listed an amount owed to DISH as an unsecured creditor but did not include the DISH agreement in her list of executory contracts and unexpired leases.  The amount listed as owed to DISH was discharged pursuant to the bankruptcy court’s discharge order.  DISH wrote off that amount but continued to bill the plaintiff the monthly fee for the pause program.  In response to emails sent by DISH to the plaintiff seeking payment of the pause program fees, DISH received facsimiles from the plaintiff’s attorneys indicating that they represented the plaintiff with regard to her debts.  The facsimiles also noted the TCPA prohibition against making automated calls to cellular phones using an autodialer or artificial or prerecorded voice without prior consent and stated that to the extent such prior extent existed, it was revoked “consistent with” Florida and federal law.  DISH made six automated calls after receiving the first of such facsimiles.  

The plaintiff subsequently filed a lawsuit against DISH.  In addition to alleging violations by DISH of Florida’s debt collection law, the plaintiff alleged that DISH had violated the TCPA by contacting her about her debt through automated calls to her cellular phone after she revoked her consent to receive such calls.  The district court granted summary judgment in favor of DISH on the plaintiff’s TCPA claim.  It found that DISH’s automated calls did not violate the TCPA because the TCPA does not allow unilateral revocation of consent to receive such calls when the consent is given in a bargained-for contractual provision. 

The Eleventh Circuit affirmed the district court’s ruling on the TCPA claim.  It determined that because the TCPA is silent as to how consent can be provided or revoked and the plaintiff gave her consent as a mutually-agreed-upon term in a contract, the question of whether she revoked her consent must be analyzed under common law principles governing contracts.  The Eleventh Circuit concluded that because such common law principles do not allow unilateral revocation of consent when given as consideration in a bargained-for agreement, it would “run counter to black-letter contract law in effect at the time Congress enacted the TCPA” to allow the plaintiff “to unilaterally revoke a mutually-agreed-upon term in a contract.”  (The Eleventh Circuit distinguished its 2014 decision in Osorio v. State Farm Bank, F.S.B., which held that a consumer could orally revoke consent to receive automated calls and a 2015 FCC Declaratory Ruling that concluded that “prior express consent” is revocable under the TCPA.  According to the Eleventh Circuit, Osorio and the FCC Ruling did not address consent given in a legally binding agreement and instead “address consent given generally and rely on common law tort principles to find that consent is revocable under the TCPA.”)

Industry continues to wait for FCC guidance on revocation of consent under the TCPA.  In 2018, the FCC issued a notice announcing that it was seeking comments on several TCPA issues following the D. C. Circuit’s decision in ACA International v. FCC.  In that decision, the D.C. Circuit upheld the FCC’s 2015 Ruling that a called party can revoke consent to receive autodialed calls at a wireless number.  Among the TCPA issues on which the FCC sought comment was methods for revoking consent.