TCPA Ruling on Revocation of Prior Express Consent Sets Precedent

Editor’s Note: Last week, we reported on a ruling from a federal appeals court that upset an understood balance on the issue of prior express consent concerning autodialed calls and prerecorded messages. Today, ARM legal expert Don Maurice explains the precedent-setting nature of the ruling.

Don Maurice

The Third Circuit Court of Appeals last week held that the Telephone Consumer Protection Act (47 U.S.C. § 227) allows a consumer to revoke her prior express consent to be called using an autodialer or prerecorded voice.

In its decision, Gager v. Dell Financial Services, the Circuit Court reversed a district court’s earlier finding that once a consumer provided consent to receive autodialed or prerecorded calls, a consumer cannot later revoke the consent.

Persons using autodialer technology or prerecorded messages are required by the TCPA to obtain the “called party’s” “prior express consent” before making their calls. While some types of calls are excepted from this requirement, telemarketing and debt collection calls are subject to the TCPA.¹

The decision does not provide guidance on whether the revocation of prior express consent can be made verbally or only in writing. However, the decision indicates the revocation can occur at any time. The decision is available here.

This decision is the first and only decision on the issue of revocation of prior express consent from a circuit court of appeals.

The TCPA was passed by Congress in 1991 in response to “[v]oluminous consumer complaints about abuses of telephone technology–for example, computerized calls dispatched to private homes . . .” requiring “federal legislation . . . . because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls.”

Although enacted more than 20 years ago, the TCPA only recently has resulted in a growing number of lawsuits. In 2010, 272 TCPA cases were either filed in or removed to the United States District Courts. The number exploded to 1,101 cases in 2012.²

Notes:

The TCPA also subjects debt collectors and telemarketers to different requirements, including the requirements concerning obtaining prior express consent.
As of July 31, 2013, 1,002 TCPA cases have been filed or removed to U.S. District Courts. Statistics courtesy of www.webrecon.com.