The Telephone Consumer Protection Act (TCPA) restricts the use of automated telephone dialing systems (ATDS) and prerecorded messages (PM) when calling consumers, prohibiting the use, without the consumer’s prior express written consent, of an ATDS or PM when calling consumer cell phones. The FCC has exclusive rule-making authority for the TCPA.
Imposing strict liability for violations and permitting recovery of statutory penalties from $500 (non-willful) to $1,500 (willful) per violation/call along with attorneys’ fees in individual and class actions, the TCPA drives numerous claims against businesses which use ATDS or PM technology to call consumers.
If the consumer provides the cell phone number to the creditor, in a credit application, for example, the FCC has ruled that this constitutes express consent to be contacted at the cell number with respect to the debt. As stated in one of its key rulings on the issue, “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”
The TCPA does not state, nor has the FCC ruled on whether express consent may be revoked, and if so, how. Thus, courts have interpreted the “absent instructions to the contrary” to mean that the consumer may revoke express consent after the fact, in writing (in Texas, New York, and Florida), or orally (in California).
However, in Gager v Dell Computer, a decision issued in May, a Pennsylvania court held that a consumer’s letter requesting a lender to cease and desist calling did not suffice to revoke the consumer’s prior express consent to call the cell phone, because the revocation was not made at the time the debtor initially released his phone number in connection with the credit contract.
In granting a motion to dismiss the TCPA claim alleging calls to a cell phone without consent, the Court interpreted the FCC’s rulings referencing consent given during the formation of contract absent “instructions to the contrary,” as meaning that such instructions (to the contrary) must be provided at the time a person “knowingly release[s]” her telephone number. The Court stated that it could find no basis in the FCC Rulings or in the TCPA for permitting postformation revocation of consent, and, distinguished the existing cases permitting written revocation of prior express consent as not addressing when revocation must take place, but only the manner of revocation (written or oral).
Although not binding in other courts, the Gager decision provides a logical argument that a consumer who provides a lender with his phone number at the outset of a lending relationship should not be able to revoke consent to be contacted at that number as long the loan is unpaid and outstanding.