In Gager v. Dell Financial Services, LLC, No. 12-2823, — F.3d — (3d Cir. Aug. 22, 2013), the plaintiff alleged that she provided her cell phone number to Dell as part of a credit application and that, upon default, Dell proceeded to use an autodialer to leave prerecorded voice messages on her cell phone in an attempt to collect the debt. As alleged, even though the plaintiff sent Dell a letter directly asking it to stop calling her phone, Dell continued to call her an additional 40 times using an autodialer and prerecorded voice, in violation of the TCPA.
The TCPA provides for a minimum of $500 (and up to $1,500) per call made to a cell phone using an autodialer and/or artificial or prerecorded voice without the prior express consent of the called party. 47 U.S.C. § 227(b). However, the statute does not contain a provision expressly providing for the right to revoke consent previously given to be called. In Gager, the lower court granted Dell’s motion to dismiss on the basis that, among other things, (1) the lack of specific revocation language in the TCPA suggested that no right to revoke exists, and (2) while a consumer can instruct a party to whom she provides her cell phone number as to whether an autodialer or prerecorded voice can be used in calls to her phone, such instruction is only effective if given at the time the number itself is provided.
The Court of Appeals for the Third Circuit disagreed, basing its reversal on (1) the common law principle that consent is revocable, (2) a recognition that, as a remedial statute, the TCPA should be construed to the benefit of consumers, such that its silence as to revocation at any time should not be seen as limiting a consumer’s right to revoke prior express consent, but as evidence that such right exists, and (3) the FCC’s Soundbite ruling—which dealt with the permissibility of a company sending one-time confirmatory texts to consumers who opt-out of future text messages to which they had previously consented—indicating that the FCC already endorses the view that a consumer may revoke consent previously given, without any time limitation.
The Court also rejected Dell’s argument that the plaintiff’s contractual relationship with Dell exempted it from the TCPA’s requirements, in essence affirming that despite any contractual provision otherwise, a consumer retains the right to revoke prior express consent under the TCPA.
Gager is a great decision that supports the true intent of Congress in enacting the TCPA—to protect consumers from intrusive and unwanted phone calls.
Read the full opinion here.