Revocation of Consent
One of the pressing issues in pending litigation under the Telephone Consumer Protection Act (TCPA) is whether a consumer can revoke consent to receive calls on a cell phone. The TCPA requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but the statute is silent on the right to revoke. So that raises two threshold questions: can prior express consent be revoked and, if so, what constitutes valid revocation?
There is a split in authority on whether consent can be revoked under the TCPA, but a number of courts are ruling that the conclusion that consent is revocable. The U.S. Court of Appeals for the Third Circuit was the first federal appellate court to address this issue. In Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013), the court held that a consumer has a right to revoke consent notwithstanding the absence of a statutory provision specifically authorizing revocation. Applying the common law concept of consent, the court reasoned that a right to revoke is not inconsistent with prior FCC decisions. Several courts have followed the Third Circuit’s lead, including the Eleventh Circuit (which governs the State of Florida) in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. Mar. 28, 2014).
We are finding that the TCPA is a very valuable tool in our private student loan practice. There are so few options for a client overwhelmed with private student debt that many just stick their heads in the sand and just turn their cell phone off and ignore the private debt collectors as best they can. However, by contacting an attorney experienced in the area of both student loans and consumer protection laws a very different result is within reach. The important thing is to revoke consent to call your cell phone and keep a record of when and how that is done. Then continue to keep a record of all calls thereafter. Please see Christie D. Arkovich P.A. for more information and for a free consultation.