Third Circuit Rules That TCPA Authorizes Consumers To Retract Consent To Cell Phone Calls

Keywords: Adamcik v. Credit Control Servs. Inc., CAN-SPAM Act, Cunningham v. Credit Mgmt. L.P., Fair Debt Collection Practices Act, Fed. R. Civ. P. 23(b)(3), Gager v. Dell Fin. Servs. Inc., Greene v. DirecTV Inc., Gutierrez v. Barclays Bank Group, Moore v. Firstsource Advantage LLC, Osorio v. State Farm Bank FSB, Starkey v. Firstsource Advantage LLC, Telephone Consumer Protection Act, Third Circuit

The spate of class actions under the Telephone Consumer Protection Act (TCPA) isn't ending anytime soon. And the risks to businesses have just increased in the Third Circuit, thanks to that court's recent ruling that the TCPA permits consumers to retract consent to receiving calls on their cell phones placed by automatic telephone dialing systems.

The TCPA prohibits making any call to a cell phone "using any automatic telephone dialing system or an artificial or prerecorded voice" unless (among various exceptions) the call is made with the "prior express consent of the called party." 47 U.S.C. § 227(b)(1)(A)(iii). Courts have upheld various ways of demonstrating "express consent," including:

verbally, such as when the consumer orally provides a cell phone number as a contact number (Greene v. DirecTV, Inc., 2010 WL 4628734 (N.D. Ill. Nov. 8, 2010)); in writing, such as when a contract authorizes cell phone calls (Moore v. Firstsource Advantage, LLC, 2011 WL 4345703 (W.D.N.Y. Sept. 15, 2011)); and through a third party, such as when a spouse authorizes cell phone calls (Gutierrez v. Barclays Bank Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011)). But once consumers have consented to receiving these calls, can they rescind their consent? The TCPA's text is silent on the subject. And although the FCC's 1992 TCPA Order indicates that consumers who provide their cell phone number can give "instructions" that they don't agree to receive autodialer calls, the order doesn't address whether the consumer can give those instructions long after initially providing the cell phone contact number.

By contrast, other privacy statutessuch as the CAN-SPAM Act, the Junk Fax Protection Act, and the Fair Debt Collection Practices Acthave express provisions allowing consumers to opt out of receiving communications at any time. A number of district courts have concluded that the lack of a corresponding express provision in the TCPA means that consumers don't have the statutory right to retract consent once it has been given. See, e.g., Osorio v. State Farm Bank, F.S.B...