District Court Holds Revocation of Consent Ineffective in the Face of Contractual Consent

Relying upon basic principles of contract law, an Alabama district court has held that there are limitations to revocation of prior express consent.  In Few v. Receivables Performance Management, 2018 U.S. Dist. LEXIS 134324 (N.D. Ala. Aug. 9, 2018), the consumer sought damages for alleged violations of the Telephone Consumer Protection Act (the “TCPA”).  In her complaint, Few alleged that the collection agency violated the TCPA by contacting her at least 184 times using an automated telephone dialing system after she revoked her consent.

In the underlying contract between Few and the creditor, however, Few provided a telephone number where she could be reached and provided the creditor, and/or any debt collection agency  hired by the creditor, with consent to contact her at that number to recover any unpaid portion of her obligation to the creditor.  Moreover, Few consented to receiving communications through an automated telephone dialing system or prerecorded messaging system.  When the collection agency contacted Ms. Few to collect upon the account, Ms. Few attempted to revoke her consent by informing them she no longer wished to receive calls. When the collection agency continued to call, Ms. Few filed suit and alleged that she had revoked her consent.

On the collection agency’s motion for summary judgment, the issue before the court was whether Ms. Few effectively revoked her prior express consent.  The collection agency maintained that she could not unilaterally revoke her consent because the contract term that provided consent was bargained for consideration.  In reviewing the issue, the court relied upon common law concepts of consent and black letter contract law.  The court first noted that common law concepts of consent only allow unilateral revocation where there is no contractual restriction to the contrary.  The court then noted that black letter contract law provides that one party may not alter a bilateral contract by revoking a term without the consent of the other party. The court therefore concluded that because “Ms. Few gave prior express consent to Receivables to make the calls, and, because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent.” Few at *6.

The decision follows other recent court opinions which appear to be aligning with a narrower view of revocation of consent and provides a couple of points to consider.  See also Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2^nd Cir. 2017).

• Does the inclusion of prior express consent within the terms of the contract erode or eviscerate the consumer’s ability to revoke consent?  This opinion, as well as Reyes, seem to suggest that possibility.
• How specific does prior express consent need to be?  Probably the more specific the better.  In this case, the consumer provided:
  • prior express consent to be contacted at a specific number;
  • to specific persons – the creditor and any debt collection agency;
  • for a specific purpose including the collection of an unpaid balance; and
  • by specific means – an automated telephone dialer or automated messaging.

While the decision is a bright spot for the industry, collection agencies should continue to use caution and closely examine underlying contract documents for prior express consent before employing automated dialing system technology when calling consumers.