In a recent decision, the 11th U.S. Circuit Court of Appeals reversed a grant of summary judgment in favor of a bank on Telephone Consumer Protection Act (TCPA) claims, by holding that a consumer can partially revoke her previously provided consent.
In Schweitzer v. Comenity Bank, the plaintiff sued the bank under the TCPA for calls placed to her cell phone after she allegedly revoked her consent. The revocation at issue purportedly occurred during a call the bank placed to the plaintiff, in which the plaintiff said, “And if you guys cannot call me, like, in the morning and during the workday, because I’m working, and I can’t really be talking about these things while I’m at work.”
The bank argued, and the district court had agreed, that this statement did not constitute a clear statement that the plaintiff did not want any further calls. The plaintiff appealed, arguing that the TCPA allows a consumer to partially revoke her consent to receive automated calls and that the plaintiff had revoked her consent to receive calls in the morning or during the workday.
In analyzing the issue of partial revocation, the 11th Circuit turned to its prior decision in Osorio v. State Farm Bank, F.S.B., which held that a consumer may orally revoke her consent under the TCPA in the absence of a contractual restriction, to hold that the common-law understanding of consent applies to the TCPA. Under the common law, the court explained, a person may limit her consent as she likes, permitting a consumer under the TCPA to provide limited consent. Therefore, the court concluded that “unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA.”
Turning to the effect of the plaintiff’s statements, the court held that a jury may find that the plaintiff was too equivocal to constitute partial revocation, but the lack of specificity in the plaintiff’s request did not preclude her from being able to have a jury decide the question. This holding highlights that the question of whether a consumer adequately revoked her consent, in many circumstances, will require a trial.
Of note, the 11th Circuit did not reference the recent Reyes decision by the 2nd Circuit, which held that a consumer cannot unilaterally revoke contractually agreed-upon consent under the TCPA. The reference the court made to its prior decision in Osorio, however, did highlight the distinction the 2nd Circuit drew in its decision limiting revocation. Specifically, the court noted that only in the “absence of any contractual restriction to the contrary, [consumers] were free to orally revoke any consent previously given.” In addition, given that the court relied upon the common-law principles for revocation, like the 2nd Circuit in Reyes, it appears the two decisions are consistent. Thus, a company may be able to avoid the issues faced in Schweitzer by utilizing contractual provisions addressing consent and revocation.