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Consumers May "Partially Revoke" Consent to be Called by Automatic Dialing Systems

  • Written by Patrick T. McLaughlin

mclaughlin patrickA new decision has been made that may have important implications for automatic dialing systems. The United States Court of Appeals for the Eleventh Circuit held in the case of Schweitzer v. Comenity Bank that the TCPA allows a consumer to partially revoke his or her consent to receive automated telemarketing calls. The ruling presents complications for telemarketers and debt collectors by giving rise to potential TCPA liability based on equivocal and unclear statements by a consumer that a jury could find to be revocation of consent to be called using automated dialing systems. The ruling also places a burden on telemarketers and debt collectors to potentially have to restrict calls to certain times of the day if so requested by the consumer.

Based on this ruling, we recommend that companies making a substantial volume of automated calls – especially telemarketing agencies and debt collectors – closely review their policies regarding recording revocations of consent to be called from consumers, and put procedures in place to confirm and promptly act upon revocation of consent, whether partial or complete.

Background

The TCPA makes it unlawful for any person, absent the “prior express consent of the called party,” to make non-emergency calls using any Automated Telephone Dialing System (ATDS) to any telephone number assigned to a cellular telephone service. Anyone who violates the TCPA may be liable for “actual monetary loss” or $500 in damages for each violation, whichever is greater.

In 2014, the Eleventh Circuit held in Osorio v. State Farm Bank that a consumer may orally revoke her consent to receive automated calls absent a contractual provision to the contrary. On August 10, 2017, the Eleventh Circuit again examined the contours of revocation of consent in the case of Schweitzer v. Comenity Bank.

Schweitzer v. Comenity Bank

Schweitzer was issued a credit card by Comenity Bank in 2012. She consented to receive calls on her cell phone from Comenity by providing her cellular number to Comenity in her credit card application. Schweitzer failed to make the required payments on her credit card account. Comenity began calling her on her cellular phone using an ATDS to collect on her credit card debt and made hundreds of such calls. On October 13, 2014, a Comenity employee called Schwietzer, who stated the following:

“Unfortunately, I can’t afford to pay right now. And if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work. My phone’s ringing off the hook with you guys calling me.”

The Comenity employee replied that “it’s a phone system. When it’s reporting two payments past due, it’s a computer that dials. We can’t stop the phone calls like that.” Five months later, another Comenity employee called Schweitzer, who unequivocally asked that Comenity stop calling her. Comenity logged the request and the calls ceased. Schweitzer sued Comenity for violating the TCPA. She alleged that she revoked consent to be called during the October 13, 2014 telephone call, and Comenity called her an additional 200 times before it stopped.

The district court granted summary judgment to Comenity, finding that Comenity “did not know and should not have had reason to know that [Schweitzer] wanted no further calls.” The district court also found that Schweitzer did not “define or specify the parameters of the times she did not want to be called,” and as a result, “no reasonable jury could find that [she] revoked consent to be called.”

Upon appeal, The Eleventh Circuit reversed and remanded the case, holding that the TCPA allows a consumer to partially revoke her consent to receive automated calls, and that there is an issue of material fact as to whether Schweitzer revoked her consent to be called in the morning and during the work day.

Outcome and Implications

The Eleventh Circuit, relying on common principles, reasoned that since a consumer had the right to completely withdraw consent to stop all future automated calls, the consumer also had a right to partially withdraw consent to stop calls during certain times. In so doing, the Eleventh Circuit brushed aside the district court’s concerns that partial revocation of consent might present “logistical and technical challenges to callers and present evidentiary difficulties for those attempting to recover under the TCPA,” finding that the mere “potential for complications” is not enough to limit a consumer’s powers under the TCPA. Regarding Schweitzer’s specific statements during the October 13, 2014 call, the Eleventh Circuit held that based on the record, the issue of partial revocation is for the jury to decide.

The Eleventh’s Circuit ruling presents complications for telemarketers and debt collectors by giving rise to potential TCPA liability based on equivocal and unclear statements by a consumer that a jury could find to be revocation of consent to be called. The ruling also places a burden on telemarketers and debt collectors to potentially have to restrict calls to certain times of the day if so requested by the consumer.


Patrick McLaughlin is a Partner at Spencer Fane LLP.