TCPA Ruling on Revocation of Prior Express Consent Sets Precedent

  • Email
  • Print
  • Printing Articles

    1. Click here to print!
    2. ...or print directly from your browser by choosing File > Print... from the menu or by pressing [Ctrl + P]. Our printer-friendly stylesheet will make sure extraneous website stuff isn't printed.
    3. You're done!

    Close this message.

  • Comments
  • RSS

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

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:

  1. The TCPA also subjects debt collectors and telemarketers to different requirements, including the requirements concerning obtaining prior express consent.

  2. 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.

 

  • Email
  • Print
  • Printing Articles

    1. Click here to print!
    2. ...or print directly from your browser by choosing File > Print... from the menu or by pressing [Ctrl + P]. Our printer-friendly stylesheet will make sure extraneous website stuff isn't printed.
    3. You're done!

    Close this message.

  • Comments
  • RSS

Posted in Collection Laws and Regulations, Collection Technology, Debt Collection, Dialers, Featured Post, TCPA .

×
Subscribe to our email newsletters

Continuing the Discussion

We welcome and encourage readers to comment and engage in substantive exchanges over topics on insideARM.com. Users must always follow our Terms of Use. Also know that your comment will be deleted if you: use profanity, engage in any kind of hate speech, post an incoherent or irrelevant thought, make a point of targeting anyone, or do anything else we find unsavory. Your comment will be posted under your current Display Name, shown below. If you'd like to change your Display Name, you must update it on the My Profile page.

  • avatar mike kaufmann says:

    I can understand allowing a consumer the right to say they would not like to receive further calls but as with most decisions that courts around the country make they are ambiguous as to the procedures that need to be followed in order to achieve this. All of the “grey areas” are fodder for consumer attorneys and leave the arm industry to guess at proper compliance policies.

  • avatar Craig Bracken says:

    Mike – Couldn’t agree more. However, as I understand it, the ‘grey areas’ you mention result from the court’s responsibility and function to interpret laws and offer judgment based on a specific set of circumstances. If a court were to offer the kind of guidance you suggest, they would in effect, be writing law.

  • avatar SterlingBP says:

    It would seem appropriate that a consumer could effectively cancel their express consent at any time, but it would also seem appropriate that the consent or lack of it apply only to a home “landline” phone. As consumers insist on utilizing their cellular phones at the top of their lungs in public locations, and infringing on MY right to privacy when they do so, it would then be appropriate for others to be able to “disturb” the consumer as much as the consumer disturbs me. I would much rather hear a consumer at the next table at the restaurant make poor excuses to a debt collector than to hear that same consumer talk about how he found a way to prevent that same debt collector from recovering a lawful debt.

  • avatar john -hilsmeyer says:

    Good. You guys are missing the point. The calls made to the consumer on cell phones cause charges the consumer must pay. The FDCPA prohibits charges to be incurred in connection with collect calls, etc. It’s not 1977 anymore, so this is the equivalent.

  • avatar Debt Guy says:

    That shouldn’t be our concern John and at some point updates to these laws will reflect this. Could be awhile but it’ll happen. Many interpretations of these consumer protection laws are so absurd that they aren’t being used to protect people from any actual abuse but rather from being held accountable for legitimate debt. That was never the intent of the folks who designed these laws.

Leave a Reply