Contractual TCPA Consent Held Irrevocable

Generally speaking and although the subject of controversy, a call recipient may revoke consent through any means that reasonably conveys the intent to have such calls cease.

However, the D.C. Circuit recently affirmed that the FCC has not addressed whether parties to a contract can agree to the manner in which a call recipient may revoke previously provided consent. Thus, telemarketing lawyers roundly agree that consumer facing contracts can provide for the manner in which the call recipient must revoke consent.

On August 7, 2018, a Connecticut federal court in Harris v. Navient Solutions granted summary judgment to a Telephone Consumer Protection Act defendant on the basis that a contractual consent provision set forth within the pertinent written contract was binding and irrevocable.

The clause read:

“I understand that you may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact me in connection with this loan or loan application. You may contact me at any telephone number I provide in this application or I provide in the future, even if that number is a cellular telephone number.”

The court considered Second Circuit legal precedent, including a recent holding that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.” It held that “[i]t is undisputed that plaintiff consented to receiving ATDS calls when she signed her promissory notes. This fact is dispositive …”

The court rejected plaintiff’s argument that contractual consent is irrevocable if, and only if, the parties expressly agree that it is irrevocable. It opined that consent could fairly be considered irrevocable by operation of law and basic contract principles, and that absent modifications to the terms thereof, such written consent bound the parties to the terms of the written agreement.

The court also rejected plaintiff’s position that FCC policy dictates that consent can be revoked by any reasonably method. Not only have such arguments been previously rejected in the Second Circuit, the court held that they are distinguishable situations involving express contractual consent.

Takeaway: At least in the Second Circuit, TCPA contractual consent may be considered irrevocable regardless of whether the contract specifically says as much. The currently prevailing view in the Second Circuit is that if there is no contractual revocation procedure set forth in the applicable contractual consent provision, consent may be considered irrevocable. If a contract does, in fact, possess a revocation provision, consumers may revoke consent in the manner set forth by contract.

If you are interested in learning more about this topic, want to review your telemarketing compliance protocols or if you are the subject of a TCPA lawsuit, please email FTC advertising lawyer at rnewman@hinchnewman.com, or phone (212) 756-8777.

Richard B. Newman is a Federal Trade Commission action lawyer at Hinch Newman LLP focusing on advertising and digital media matters. Follow him on LinkedIn.

Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result. Hinch Newman LLP | 40 Wall St., 35th Floor, New York, NY 10005 | (212) 756-8777.

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