Can a party who contractually consents to receive autodialed calls from another party to his cellular telephone number change his mind and revoke such consent? No, said a Florida magistrate judge earlier this week in a report and recommendation in the case of Lucoff v. Navient Solutions, LLC, 2019 U.S. Dist. LEXIS 89879 (S.D. Fla. May 28, 2019).
Plaintiff, who had taken out various student loans, alleges that defendants violated the TCPA by calling him on his cellphone regarding these loans after Plaintiff had orally revoked his consent to receive such calls. Significantly, Plaintiff was a class member in a class action settlement against Defendants, which settled in 2012. As part of the class action settlement, class members, who did not opt out of the settlement, agreed to receive autodialed and prerecorded calls from Defendants unless they submitted a revocation request. Plaintiff did not opt out and did not submit a revocation request. But Plaintiff alleges that he orally revoked such consent on June 24, 2014 in a call with one of Defendants’ representatives.
Relying on Reyes v. Lincoln Auto Fin. Servs., 861 F.3d 51 (2d Cir. 2017) and Rodriquez v. Student Assistance Corp., 2017 WL 11050423 (E.D.N.Y. Nov. 6, 2017), the magistrate judge found that “because Plaintiff did not submit a Revocation Request, he could not unilaterally revoke his express consent to receive autodialed and prerecorded calls from Defendants, which he gave as part of the Arthur Settlement.”
The magistrate judge also found that this conclusion was consistent with decisions from the Eleventh Circuit, such as Medley v. Dish Network, LLC, 2018 WL 4092120 (M.D. Fla. Aug. 27, 2018). The magistrate judge agreed with the Medley court that the Eleventh Circuit’s decision in Osario v. State Farm Bank, 746 F.3d 1242 (11th Cir. 2014), which found that a party could orally revoke previously-given consent under the TCPA, “did not address the issue [here] ‘which is whether consent may be unilaterally revoked when it is given as part of a bargained-for contract.’” As the Medley court found, it is black-letter law that one party to an agreement cannot, without the other party’s consent, unilaterally change the agreement and “’[n]othing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction of black-letter law.’” Thus, the magistrate judge recommended that defendants be granted summary judgment on the TCPA claim because the undisputed facts establish that they had Plaintiff’s prior express consent to make the challenged calls.
Further, the magistrate judge found that even if Plaintiff’s attempted revocation were effective, the undisputed facts establish that Plaintiff later provided his express consent to receive the challenged calls, which was yet another ground supporting summary judgment.