This article previously appeared on the TCPA Defense Force blog, and is republished here with permission.

Sometimes it’s hard to tell who makes life the hardest for those who use modern technology to reach their customers: the FCC, the FTC, state AGs, or the courts. Well the Eleventh Circuit Court of Appeals really threw its hat in the ring for that title with its August 10, 2017 decision against Comenity Bank. Like so many TCPA cases, this one began when—gasp—Comenity began calling a customer who was late on her bill. 

A Comenity employee reached the consumer one day and asked her if she could at least pay the monthly minimum charge. The consumer responded as follows:

Unfortunately I can't afford to pay [my past due payment] right now. And if you guys cannot call me, like, in the morning and during the work day, because I'm working, and I can't really be talking about these things while I'm at work. My phone's ringing off the hook with you guys calling me. 

Five months later, the consumer told another Comenity employee to stop calling her. Comenity promptly added her to the bank’s do-not-call list, and she wasn’t called with an autodialer again. But the consumer sued Comenity anyway for all of the calls that followed the garbled conversation quoted above.

The trial court granted summary judgment to Comenity. It found that Comenity “did not know and should not have had reason to know that [the consumer] wanted no further calls,” that she did not “define or specify the parameters of the times she did not want to be called,” and that “no reasonable jury could find that [she] revoked consent to be called.” Sounds fair. But the Eleventh Circuit reversed the trial court and sent the case back for a trial.

The Birth of Partial Revocation

First, the Eleventh Circuit explicitly rejected Comenity’s argument that a consumer cannot “partially revoke” their consent under the TCPA (which doesn’t mention the concept of revocation at all, mind you). So the Eleventh Circuit has now breathed the concept of “partial revocation” into the TCPA. At least in Florida, Georgia, and Alabama—the Eleventh Circuit’s footprint—consumers can now “provide limited, i.e., restricted, consent for the receipt of automated calls.” Despite creating new law, it provided no rational contours for the scope of a “consumer’s powers.” So is “only call me on overcast Tuesday mornings when I’m not on the subway, but not feeling blue, or wearing red” an enforceable type of “partial revocation”? We’re not told. The appeals court brushed off the “logistical and technical challenges to callers”—after all, the court reasoned, you can “always decide that, if a consumer opts for partial revocation, it makes more practical and business sense to just not place any more automated calls to her.”

Next, although it called the issue “close,” the appeals court found that it was improper for the trial court to find that no reasonable jury could find that the consumer’s garbled message was a partial revocation. The appeals court noted that the “meaning of language is inherently contextual” and that “the scope of consent, like its existence, depends heavily upon implications and the interpretation of circumstances.”

Practice pointer: marketers should now add to their job posting for new call-center agents the following skills;

Advanced degrees in one, more, or all of the following disciplines:

  • Linguistics
  • Semiotics
  • Philology
  • Phenomenology
  • Psychology
  • Mind reading, etc.

The appeals court, amidst its reference to Carly Rae Jepsen’s Call Me Maybe, found that the consumer’s intonation of the phrases “‘the morning’ and ‘the workday’ cannot be viewed, defined, or analyzed abstractly or in isolation.” Nor, respectfully, can this new, judicially created concept of “partial revocation.”

As always, training should be a key component of your overarching TCPA compliance strategy. This case highlights the importance of training your agents to know when they should take the time to flag an account for extra attention. The Eleventh Circuit’s opinion will invariably engender more TCPA litigation, but good training will help minimize the (needless) downside.

See the full opinion here: Schweitzer v. Comenity Bank 

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