Eleventh Circuit Finds Contractual TCPA Consent Can’t Be Revoked

The Eleventh Circuit has joined the Second Circuit in finding that the Telephone Consumer Protection Act (“TCPA”) does not authorize unilateral revocation of consent to receive automated calls when such consent is given in a bargained-for contractual provision. In a favorable opinion for Dish Network, the court held that Dish had permission to continue placing robocalls to a subscriber, even though the recipient tried to withdraw previously provided contractual consent.

In April 2013, Linda Medley entered an agreement for satellite services. As part of the agreement, Medley provided her cellular telephone number and expressly authorized Dish “to contact her regarding her Dish Network account or to recover any unpaid portion of her obligation to Dish, through an automated or predictive dialing system or prerecorded messaging system.”

After filing for bankruptcy less than a year later and having her debts associated with the account discharged, Medley and her legal team reached out to Dish on multiple occasions to try to revoke consent related to collection calls. Notwithstanding the attempts, Dish continued to contact Medley, and she argued those calls violated the TCPA. The Eleventh Circuit disagreed.

“Permitting Medley to unilaterally revoke a mutually-agreed upon term in a contract would run counter to the black-letter contract law in effect at the time Congress enacted the TCPA,” the court said. Medley argued that this interpretation disregards the Federal Communications Commission’s 2015 order stating consumers have a right to revoke consent “using any reasonable method including orally or in writing.”

But like the Second Circuit, the Eleventh Circuit said that the FCC’s Order was silent on the issue of contractual consent and under common contract law, one party of a mutual agreement cannot unilaterally void an obligation.

While the Eleventh Circuit joins a growing number of courts finding that contractual consent cannot be revoked by one party, uncertainty on the issue still exists in many jurisdictions. Given that uncertainty, and as a best practice, businesses should consider honoring revocations of consent. However, including consent language in a contract may be a good backup in case of an error.

A Senior Attorney at M&S, Erica draws on her previous experience as in-house counsel to advise clients on federal and state consumer protection laws and defend them in litigation and government enforcement actions.

1197 798 Erica Hollar
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