The reasonableness of consent revocation was one of four issues addressed in the recent decision on appeal of the Federal Communications Commission’s (“FCC”) Telephone Consumer Protection Act (“TCPA”) 2015 Order by the United States Court of Appeals for the D.C. Circuit.
How did the D.C. Circuit rule on the revocation of consent issue?
The ruling of the D.C. Circuit as to the proper scope of consent revocation represented one of two, albeit limited, instances in which the Court upheld the 2015 Order in its decision. As those operating in the telemarketing space know, the TCPA itself does not speak to a consumer’s right to revoke previously provided consent. Nevertheless, courts and the FCC have universally interpreted TCPA regulations to permit such revocation. In affirming the FCC’s determination as to the scope of the right to revoke, the law on this issue remains that a call (or text) recipient is free to revoke consent through any means that reasonably conveys the intent to have such calls (texts) cease, whether that intent it is communicated orally or in writing.
In its decision, the D.C. Circuit specifically emphasized the fact that the FCC’s 2015 Order did not, however, address whether parties to a contract can agree to the manner in which a call recipient may revoke previously provided consent. Importantly, this emphasis highlights a logical takeaway from the decision, namely if consent is provided as a part of a contract, including as part of a website registration process, that contract can also expressly provide for the manner in which the call recipient must revoke consent in order for the revocation to be valid.
The Implications of the D.C. Circuit’s Revocation of Consent Decision
The D.C. Circuit’s revocation of consent ruling should lead to a wholesale reexamination of consumer facing contracts used by telemarketers and their lead generator partners. With the green light from the D.C. Circuit Court of Appeals, the opportunity to procure agreement from consumers as to the manner in which consent to receipt of calls and/or text messages must be revoked is one that should not be taken for granted or overlooked. Against this backdrop, it is critical to have contracts, website terms and conditions, and telemarketing practices and procedures examined by experienced counsel.