According to a federal judge in the District of Connecticut, contractual consent cannot be unilaterally revoked in a putative Telephone Consumer Protection Act (TCPA) class action.
In Harris v. Navient Solutions, LLC, plaintiff Jennifer Harris obtained several student loans from Navient Solutions between 2006 and 2009. In promissory notes she signed to secure the loans, she provided her telephone number and agreed to notify the lender if her number changed.
Harris also agreed to two clauses relevant to her later TCPA complaint, which stated: “This Note may be modified only if you put the modification in writing and the modification is agreed to by any borrower or cosigner. … I understand that you may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact me in connection with this loan or loan application. You may contact me at any telephone number I provide in this application or I provide in the future, even if that number is a cellular telephone number.”
According to the plaintiff, between 2012 and 2014, defendant Navient frequently used an automated telephone dialing system (ATDS) to contact Harris’ cellphone. At some point in December 2012, Harris began telling Navient representatives to “stop calling.” Despite these requests, she continued to receive ATDS calls until August 8, 2014, when her lawyer sent a letter to Navient and Harris filed a TCPA complaint.
Navient moved for summary judgment, arguing that the plaintiff could not unilaterally revoke her consent to receive ATDS calls because she provided her consent in a contract. Relying on the opinion of the U.S. Court of Appeals, Second Circuit in Reyes v. Lincoln Automotive Financial Services, U.S. District Judge Robert N. Chatigny granted the motion.
In Reyes, the Second Circuit held that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.”
“It is undisputed that plaintiff consented to receiving ATDS calls when she signed her promissory notes,” Judge Chatigny wrote. “This fact is dispositive under Reyes.”
The plaintiff pushed back against Reyes by arguing that the consent clause in the promissory note was ambiguous and could be interpreted to provide only initial consent to receive ATDS calls. The judge disagreed: “The clause includes no temporal limitations and contemplates ATDS calls in the future: ‘You may contact me at any telephone number I provide in this application or I provide in the future.’”
The plaintiff also urged the court to require that contractually provided consent can be revoked only when the parties expressly agree by contract that consent is revocable. Again Judge Chatigny found the argument had no force in light of Reyes, where the contract at issue—such as the notes signed by Harris—was silent on revocation.
As a final attempt, the plaintiff pointed to a 2015 ruling by the Federal Communications Commission (FCC) that prior express consent may be revoked.
“Plaintiff’s reliance on the FCC’s ruling is unavailing,” the judge held. “In Reyes, the [Second Circuit] stated that the ruling addressed only the ‘narrow’ question whether, under the TCPA, ‘a consumer who has freely and unilaterally given his or her informed consent to be contacted can later revoke that consent.’ Here, as in Reyes, the issue is ‘whether the TCPA also permits a consumer to unilaterally revoke his or her consent to be contacted by telephone when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract.’ Reyes answered this question in the negative.”
Judge Chatigny granted the defendant’s motion for summary judgment and instructed the court clerk to enter judgment and close the case.
To read the decision in Harris v. Navient Solutions, LLC, click here.
Why it matters: The Second Circuit’s decision in Reyes has helped TCPA defendants on the issue of consent since its release last June, as it did in the case against Navient, where the court relied heavily on the opinion to grant summary judgment in favor of the defendant and close the case.