Wednesday, July 6, 2016

Words Matter When Revoking Consent


In revocation of consent, words matter as illustrated by a recent district court decision from the Northern District of California.  In Dixon v. Monterey Financial Services, the consumer alleged that on three separate occasions she orally revoked her consent to be contacted via an automated telephone dialing system.  Dixon v. Monterey Fin. Servs., 2016 U.S. Dist. LEXIS 82601 (N.D. Cal. June 24, 2016).  The consumer contended that the account servicer’s continued calls therefore violated the TCPA.  

On the defendant’s motion to dismiss, the court cited to the FCC’s interpretation of the TCPA and notably the FCC’s conclusion that a subscriber has a right to revoke consent and may do so by “clearly express[ing] his or her desire not to receive further calls.”   Id. at *6.  Because “consent is terminated when the [person who obtained consent] knows or has reason to know that the other is no longer willing for him to continue the particular conduct.” Id. at *2. The court therefore turned to the three calls in question and the exact language used by the consumer to determine when and if the consumer revoked consent: 

·        In the first call at issue, the consumer stated “I have, um, an attorney…who helps me with, um, consumer mistreatment the way I’m being treated” and “[w]hat I’m going to do is contact [him]…and have him contact you guys.”  The court concluded that the language used was not sufficient to revoke consent.  “Although the referenced comments indicate the plaintiff had or intended to retain counsel to respond to defendant’s inquiries regarding plaintiff’s debt, plaintiff did not use language that would cause defendant to know, or have reason to know, she was revoking her prior express consent to be called.  Indeed….”[t]elling [the defendant] that it could do something, hardly indicates that it cannot do something else.”

·        In the second call, however, the consumer went further stating “I asked you guys not to call me and you can contact my attorney.”  The court held that this was sufficient for a trier of fact to find that the statement constituted an expression of her current desire not to receive further calls.

In light of the FCC’s conclusion in its Declaratory Order in 2015 that consent may be revoked “in any reasonable manner that clearly expresses his or her desire not to receive further calls”, it is becoming evidence that collectors and others making calls subject to the TCPA must pay close attention to the language used by the consumer to ascertain whether consent is being revoked.  See 3 FCC Rcd. at ¶ 70 (2015).  As evidenced by this court’s decision, words matter and we are likely to see more parsing of language as the case law develops.

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