The 3rd U.S. Circuit Court of Appeals in Philadelphia ruled unanimously Thursday that, under the Telephone Consumer Protection Act (TCPA), consumers may withdraw their consent to have robo-callers contact them by cell phone. The ruling directly applies to debt collectors that use automated calls to notify customers of delinquent payments. Now, if a consumer says in writing (s)he wants robo-calls to stop, collection agencies have to comply.
“Because the TCPA is a remedial statute, it should be construed to benefit consumers,” Circuit Judge Jane Roth wrote for the three-judge panel. “TCPA provides consumers with the right to revoke their prior express consent to be contacted on cellular phones by autodialing systems.”
The court ruled in favor of Ashley Gager, who complained that Dell hounded her with more than 40 calls in less than three weeks to collect a delinquent debt, even after she had sent a letter asking for the calls to stop.
According to the court’s opinion, in 2007 Gager used her cell phone number instead of her home phone number on an application for a Dell credit line, and then bought thousands of dollars of computer equipment. After Gager defaulted, Dell began leaving her automated messages, and continued doing so even after receiving a letter from Gager in December 2010 demanding that the calls stop.
Roth wrote that Dell will still be able to contact Gager by phone about her debt, as long as it doesn’t use an automated dialing system.
The Federal Communication Commission stated in a 2008 Declaratory Ruling on TCPA, “autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” But the court concluded that a newer Declaratory Ruling by the FCC in 2012 supports the claim that a consumer may fully revoke prior express consent by transmitting an opt-out request to the sending party. This ruling reverses a lower court opinion from 2012 that said a letter by a debtor to a creditor does not revoke prior express consent.
Collection agency questions about this ruling can be asked at our upcoming Ask the Attorney webinar on August 29 at 2 p.m. Eastern.
The TCPA is set to outpace the Fair Debt Collection Practices Act (FDCPA) as the statute that causes the most confusion and lawsuits for compliance officers and operations, and it wasn’t even geared toward the collection industry in the first place. Learn more about what collectors can do to stay up-to-date on the latest requirements under TCPA.