Caveat Vendor

When It Comes To Robocalls, Consent is Not Forever

August 27, 2013

Lisa Nowlin

In a precedent-setting decision, the United States Court of Appeals for the Third Circuit recently held that consumers have the right to revoke their express consent at any time under the Telephone Consumer Protection Act of 1991 (TCPA) in Gager v. Dell Financial Services.

Ashley Gager sued Dell Financial Services (“Dell”) for violations of the TCPA after she allegedly received forty automated calls to her cell phone in a three-week period, despite sending a letter requesting the company to stop calling her. (Those are the allegations in Ms. Gager’s complaint; we, of course, have not verified their accuracy.)

The TCPA makes it unlawful to make automated calls to cell phones without the prior express consent of the called party. Gager gave her express consent in 2007 when she applied for a line of credit from Dell, and Dell argued that, once given, express consent under the TCPA cannot be revoked.  The Middle District of Pennsylvania agreed with Dell and dismissed Gager’s complaint for failure to state a claim.

The Third Circuit reversed, finding a right to revoke consent under the TCPA and that consent can be revoked at any time. It relied on the common-law concept of consent, in which consent is revocable. The court found no congressional intent to depart from that common-law understanding of the term.

The appellate court reasoned that because the TCPA was passed to protect consumers from intrusive and unwanted calls, any ambiguity in the statute should be construed in favor of the consumer. It also did not see any reason to read a temporal limitation into the right of revocation and refused to find one.

The Third Circuit is the first appellate court to have considered this issue, but its ruling was not surprising.  The Federal Communications Commission, in a 2012 ruling, embraced a similar approach in a decision involving text messages, a conclusion that the court noted as additional support for its own decision.

When it comes to the TCPA and autodialed calls, at least, “no” means “no”, even if the target of the autodialer’s affections earlier said “yes.”

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