A TCPA plaintiff must prove revocation of consent according to the decision in Reyes v. Lincoln Automotive Financial Services , No. 9:15-cv-00560 (E.D.N.Y. June 20, 2016). In granting the creditor’s motion for summary judgment, the district court distinguished the Third Circuit’s holding in Gager v. Dell Financial Services, LLC , 727 F.3d 265 (3d Cir. 2013), that express consent may be revoked under the TCPA. Id. at 267. The court noted that the Second Circuit had not decided revocation, but the FCC adopted the Gager holding in its July 2015 Order. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, et al. , CG Docket No. 02-278, WC Docket No. 07-135, Declaratory Ruling and Order, 30 FCC Rcd 7961 ¶ 56 (2015); id.¶ 70 (“[T]he consumer may revoke his or her consent in any reasonable manner.”). Unlike the letter requesting the cessation of calls related to a credit account in Gager , the purported letter in Reyesmay not have been sent, and a letter from the defendant denied its receipt. Thus, while the FCC “s[aw] no reason to shift the TCPA compliance burden onto consumers . . . that a caller did not have prior express consent for a particular call,” id. ¶ 70, the district court placed the burden on the plaintiff to demonstrate the reasonableness of his revocation.
This decision may allay some fears about maintaining the affirmative defense of consent in the wake of the July 2015 Order, where there is no record of the alleged revocation communicated to the defendant. See id. , Statement of Commissioner Michael O’Rielly Dissenting in Part and Approving in Part at 12 (“Indeed, asking it to prove that consent was not withdrawn puts the company in the untenable position of having to prove a negative.”). But where oral revocation is alleged, or other individualized means chosen by the customer, the petitioners in ACA International v. FCC , No. 15-1211 (D.C. Cir. Nov. 25, 2015), argue that compliance with such a revocation regime is unworkable. We look forward to the D.C. Circuit’s weighing in on this and other controversial items in the July 2015 Order.