A federal appellate court recently ruled that a consumer who’d previously given consent to a retailer to contact her via her cell phone could later revoke her consent. As a result, the Dell Company may be on the hook for violating the federal Telephone Consumer Protection Act (TCPA).
Ashley Gager purchased a Dell computer and financed it through Dell Financial Services (DFS). When she later experienced trouble making the payments, she found herself on the receiving end of over 40 automated collection calls from DFS. She filed a complaint under the TCPA and DFS filed a motion to dismiss the suit.
Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls. One particular provision of the TCPA makes it unlawful for any person: “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call.” Calls to a number voluntarily provided are legal, so long as the consumer does not give “instructions to the contrary.”
In its motion, DFS pointed to Gager’s credit application, in which she provided her cell telephone number as her contact information. According to Dell, in doing so, Gager consented to Dell’s use of that number. And while Dell conceded she could have instructed Dell not to call that number, she was obligated to give that instruction at the time of the transaction. Her attempt to do so later was ineffective according to Dell.
Dell argued the fact that Congress did not include a mechanism for consumers to revoke their consent meant no such right existed. Dell pointed to other federal statutes, which included procedures for revoking consent, to support its point. If Congress had intended to allow consumers to revoke their consent, Congress would have done so. Dell also noted several federal courts had agreed with its argument.
But the court didn’t see it Dell’s way. In its view, the common law has traditionally recognized that consent may be revoked. So Congress' silence on that point established nothing. The court also noted that given the TCPA's – to protect consumers – the congressional silence should tip in favor of the consumer. Finally, the court noted the FCC had indicated in a prior ruling that consumers should maintain a right to revoke their consent.
And even though Dell argued how unfair it would be to deny it the right to autodial Ms. Gager until she paid her debt, the court noted nothing in the TCPA prevented Dell from making live, person-to-person calls.
If you’re in a business that uses autodialing be careful. Apparently at least some federal courts subscribe to the old adage – “the customer is always right.”