In general, when you apply for a credit card, an automobile loan, or a
home loan, you are consenting to being called by the creditor. Most creditors
use automated phone dialing systems to call their customers. Auto dialers
allow a customer service representative to call several numbers at once
and only speak to those who answer their phones.
However, these types of calls often bear hidden costs. For example, when
a creditor auto-dials a cellular phone, the consumer may be charged for
the call. Numerous telephone calls can result in a higher phone bill for
that consumer. As a result, Congress enacted the Telephone Consumer Protection
Act (TCPA). The statute is designed to protect consumers from auto-dialed
calls and calls made with a pre-recorded voice. Given that it applies
to telemarketers as well as debt collectors, it provides rather broad
However, the statute also states that when a consumer provides express
written consent to the phone calls, they are not prohibited. The FCC,
which interprets the terms of the TCPA, has indicated that this consent
is obtained when the credit application is filled out. The statute does
not say whether it is possible to revoke that consent at a later date.
For obvious reasons, the creditor's bar believes that the TCPA does
not allow the revocation of consent once it has been provdied to a creditor.
Failing that position, the creditor's bar argues that the revocation
must be made at the time the information is provided.
A recent opinion from the Third Circuit of the U.S. Court of Appeals holds
that a consumer may revoke consent under the TCPA and that consent may
be revoked at any time. In
Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3rd Cir. 2013), the Third Circuit analyzed the TCPA's
silence regarding the revocation of consent.
Dell argued that since the statute contained no language regarding revocation,
and since other consumer protection statutes
did provide for revocation of consent, Congress's intent was that the
TCPA not allow for revocation. The Third Circuit disagreed, citing to
the well-settled common law provision that consent is freely revocable
at any time. The Court noted that Congress's silence was matched by
a failure to define "consent." Therefore, Congress intended
that consent be defined as it is defined in the common law.
To futher support this position, the Court considered an FCC opinion that
allowed a consumer to revoke consent via an opt-out message transmitted
to the caller. The Court noted that the FCC opinion contained several
statements that a consumer may fully revoke prior express written consent
by transmitting that request to the sending party. It further noted that
the FCC did not tie any time limitation on when consent can be revoked.
This position is squarely in line with the common law regarding consent.
As a final element to its analysis the Court also noted that since the
TCPA is a remedial statute aimed at protecting consumers, all inferences
drawn from its language should be taken in favor of the consumer.
What remains an open question is
how consent can be revoked. Courts tend to agree that it must be revoked in
writing. However, what kinds of writings will effect revocation? Certainly,
a letter to the creditor would do the trick. But what about the discharge
injunction that is entered when a consumer receives a discharge in a bankruptcy?
That injunction is a written document that specifically instructs creditors
to cease all collection attempts with regard to the debt. Is that sufficient
to revoke consent?
Given the rise in TCPA litigation over the last few years, I'd wager
that we're not too far away from seeing that question answered.