Last week the Eleventh Circuit held that a consumer can revoke her consent not only orally but also partially. See Schweitzer v. Comenity Bank, No. 16-10498 (11th Cir. Aug. 10, 2017). The rule it announced would be a double-edged sword that makes it more difficult not only for defendants to comply with the TPCA, but also for plaintiffs to satisfy Rule 23.
The plaintiff in Schweitzer provided her cellular telephone number—and, by doing so, her consent to be called at that number—when she applied for a card from the defendant. See Opinion at 3. When she failed to make timely payments on that credit card a year later, the defendant allegedly placed “hundreds” of “automated” calls regarding her debt. The plaintiff answered at least two of those calls. Id. During the first, she said “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.” Id. at 4. During the second, she said “Can you just please stop calling? I’d appreciate that, thank you very much.” Id. The defendant continued calling after the first exchange, but stopped calling after the second. Id.
The plaintiff eventually sued and argued that she had revoked her consent during her first conversation with the defendant, after which it called her 200 more times. Id. The trial court entered summary judgment against her, reasoning that she had not created a genuine issue of material fact regarding whether she had revoked her consent, as no reasonable jury could find that her statement—which did not “define of specify the parameters of the times she did not want to be called”—amounted to a revocation of consent. Id. at 5. She then took an appeal to the Eleventh Circuit.
Last week the Eleventh Circuit reversed and agreed with the plaintiff that (1) consent can be not only partially granted but also partially revoked, and (2) a reasonable jury could conclude that she had revoked her consent to be called during certain times of the day.
As for whether consent can be partially revoked in a given case, the court rejected the defendant’s argument that “the only effective revocations” are those for “no further communications whatsoever.” Id. at 5. The court began by noting that, at common law, a person “may limit her consent as she likes, consenting to one act but not another, or to acts at one time but not another, or to acts under some conditions but not others.” Id. at 7 (citation omitted). It also noted that partial consent occurs in other areas of the law, for example consent to some but not all searches, or the recording of some but not all calls. Id. Finally, it reasoned that the ability to revoke consent to some but not all calls is consistent with the fact that consumers can provide consent to some but not all calls, and that consumers can revoke consent to all calls if they choose. Id. at 8. Notably, however, the court acknowledged—as the Second Circuit recently held—that there can be “contractual restrictions” on one’s ability to revoke consent. Id. at 2 (“[A]bsent a contractual restriction to the contrary, the TCPA allows a consumer to orally revoke her consent to receive automated calls.”) (emphasis added).
As for whether consent had been partially revoked in this particular case, the court held that, although the issue was “close,” it was in this case “for the jury” to decide. Id. at 10. The court began by citing the FCC’s determination that “consumers may revoke consent in any manner that clearly expresses a desire not to receive further messages.” Id. at 11 (citation omitted). It then found that “reasonable minds might differ” about whether the plaintiff had clearly expressed such a desire. In doing so, it assumed that her words were a request rather than a question—although her use of “if” suggests otherwise. Instead, it focused on whether her words—“the morning” and “the work day”—were so imprecise that they did not clearly express a desire not to be called at any particular time. Although the court recognized that those terms and their definitions are “vague and tautological,” it found that they could not be “analyzed abstractly or in isolation,” as language is “inherently contextual,” and consent “depends heavily upon implications and the interpretation of circumstances.” Id. at 12-13 (citations omitted). Because a reasonable jury could conclude that the plaintiff had been called at times when she asked not to be, the court reversed the entry of summary judgment against her and remanded the case for trial. Id. at 14-15 & n.3.
The court acknowledged that its holding “might present” callers with—to put it mildly—“logistical and technical challenges.” But it found that those challenges could be overcome (by using “sophisticated software”) or avoided (by “not plac[ing] any more automated calls” to those whose revocations were partial or equivocal), and in any event did not outweigh consumers’ “powers under the TCPA.” Id. at 10. The fact that these “challenges” involve the exercise of speech rights was not discussed. Notably, the court also acknowledged that its holding might also present “evidentiary problems for those attempting to recover under the TCPA.” Id. at 10. That is especially true for those attempting to recover for not only themselves but also a putative class of others; if granting and revoking consent are both “inherently contextual,” and if in this case they could not be adjudicated without a jury, it stands to reason that claims such as this cannot normally be established through classwide proof as required by Rule 23.