The Third Circuit recently ruled in Gager v. Dell Financial Servs., LLC that a consumer may revoke her prior express consent to be called on a cellular phone and that no time frame exists in which the revocation must be made. No. 12-2823, 2013 U.S. App. LEXIS 17579 (3d Cir. Aug. 22, 2013). Prior to Gager, no circuit court had addressed whether the Telephone Consumer Protection Act (“TCPA”), which is silent on the issue, permitted such revocation and the law at the district court level was conflicting.
The TCPA is silent on the issue of revocation. In 1992, the Federal Communication Commission (“FCC”) ruled that autodialed calls to both cellular and landlines “are lawful so long as the recipient has granted permission to be called at the number which they have given, absent instructions to the contrary.” (“1992 Ruling”). Id. at * 6 (citations omitted) (internal quotation marks omitted). The 1992 Ruling “left unresolved the question of whether instructions to the contrary may be given after a consumer has granted her prior express permission and, if so, whether there is any temporal limitation on the right to revoke prior express consent.” Id. at *6-7.
In 2007, Ashley Gager (“Plaintiff”) financed her purchase of several thousand dollars’ worth of Dell computer equipment from Dell Financial Services LLC (“Dell”). On her credit application, Plaintiff provided Dell with her cellular number in the place on the application that called for a home phone number. Accordingly, Dell was not aware that the number was a cellular one.
When Plaintiff defaulted on her debt, Dell began making pre-recorded collection phone calls to the number she provided. In 2010, Plaintiff wrote to Dell and asked it to stop calling her number; however, Dell did not stop. Plaintiff alleged that in the three week period following the receipt of her letter, Dell called her cellular phone approximately forty times.
Gager filed suit against Dell alleging that it was obligated under the TCPA to stop calling her once it received her letter because it effectively revoked her consent to be called. Dell moved to dismiss and the district court granted its motion, ruling that once permission was given it could not be revoked. The district court found that the only way Plaintiff could have prevented Dell from contacting her on the number she provided was to provide instructions to the contrary at the time she filled out her application.
The Third Circuit reversed. It ruled that Plaintiff had “stated a plausible claim for relief because (1) the TCPA affords her the right to revoke her prior express consent to be contacted on her cellular phone via an autodialing system; and (2) there is no temporal limitation on that right.” Id. at *5.
The Third Circuit found that construing the TCPA to allow consumers to revoke consent “is consistent with the basic common law principle that consent is revocable.” Id. at *11. Such a construction is also “in line with the purposes of the TCPA,” which is a “remedial statute that was passed to protect consumers from unwanted automated telephone calls.” Id. at *13. Lastly, the Third Circuit found that the FCC’s ruling in SoundBite, a decision in which the FCC found that one-time text messages confirming that an individual had opted out did not violate the TCPA, supported the Court’s ruling. Id. at *14-15.
In regard to when revocation may be made, Dell argued that Plaintiff had to submit instructions not to call her cellular telephone at the time she filled out the loan application but the Court disagreed. Id. at *16. Again, because the TCPA was “intended to protect consumer rights, not restrict them” the Court refused to interpret the TCPA’s silence on the issue of revocation and the 1992 Ruling to mean that instructions not to call an individual’s cellular phone must be given at the time the number is provided. Id. at *17.
Gager is yet another case which expands the rights of consumers under the TCPA and is likely to have significant influence as other circuit courts address the issue. Businesses are advised to develop a streamlined method of (1) identifying cellular phone numbers; (2) accepting opt-out requests from consumers; and (3) updating their records to reflect such requests. Even when a consumer has provided a cellular number to a business or creditor, it can no longer assume that that consent is permanent. Further, effective October 16, 2013, any advertising or telemarketing calls made to cellular phones will violate the TCPA if the caller does not have prior express written consent authorizing such calls.