Locke Lord QuickStudy: Eleventh Circuit Holds that TCPA Consent Cannot be Revoked when Provided as Consideration in a Binding Contract

In Medley v. Dish Network, LLC, No. No. 18-13841, 2020 WL 2092594 (11th Cir. May 1, 2020), the Eleventh Circuit held that consent to receive calls using an automatic telephone dialing system under the Telephone Consumer Protection Act (“TCPA”) provided by a consumer as a term of a contract cannot be unilaterally revoked under common law contract principles. Id. at *5. The court adopted the Second Circuit’s reasoning in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017), which similarly found consent given in a contract cannot be revoked unilaterally under the TCPA. This ruling should provide guidance to other circuits to follow suit, and significantly reduce TCPA liability for companies that incorporate “consent” clauses into their agreements with consumers. 

Background

Linda Medley entered into a 24-month agreement with Dish Network to receive satellite television services in exchange for monthly payments. Id. at *1. As part of the contract, Medley provided her cellular telephone number, and authorized Dish to contact her using an automated or predictive dialing system or prerecorded messaging system regarding her account with Dish or to recover any unpaid amount owed. Id. Medley filed for bankruptcy protection and her attorneys sent Dish faxes stating that “[t]o the extent any such prior express consent existed, if any, to call the above person using an ATDS, such consent is hereby forever revoked consistent with the Florida and federal law.” Id. at *2. After her bankruptcy was concluded, Dish made six automated calls to Medley’s cell phone trying to recover charges that were incurred after the bankruptcy filing. Medley filed suit in the Middle District of Florida, alleging violations of the TCPA and other statutes. Id.

The TCPA Does Not Allow Unilateral Revocation of Consent Given in a Bargained-For Contract 

The Eleventh Circuit affirmed summary judgment for Dish on the TCPA count. Id. at *6. The court cited Reyes, for the proposition that Medley could not unilaterally revoke her consent to receive calls. Id. at *5-6. The court reasoned that an “agreement is a manifestation of mutual assent on the part of two or more persons, [and thus] it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed.” Id. at *5 (internal quotation marks omitted). The court distinguished the FCC’s 2015 Ruling that consent can be revoked through any reasonable means because the FCC had only addressed “consent given generally and rely on common law tort principles to find that consent is revocable under the TCPA.” Id. at *6 (emphasis added). The FCC had not addressed consent given in a legally binding agreement. Id. The Eleventh Circuit held that Medley’s right to revoke her consent had to be analyzed under common law principles governing contracts, which “do not allow unilateral revocation of consent when given as consideration in a bargained-for agreement.” Id. 

The court further rejected Medley’s argument that unilateral revocation of consent given in a legally binding agreement is permissible because it comports with the consumer-protection purposes of the TCPA. Id. The court found such a principle “would run counter to black-letter contract law in effect at the time Congress enacted the TCPA.” Id. Nothing in the language of the TCPA suggested that Congress intended to overrule well-established contract law. Id.

Conclusion

The Eleventh Circuit’s decision increases the likelihood that other circuits will join the Second Circuit in finding express contractual TCPA consent may not be unilaterally revoked. For now, however, the decision is only binding on federal district courts in Alabama, Florida, and Georgia. Although the issue remains undecided in a majority of circuits, companies that call consumers as part of their business operations should incorporate contractual provisions providing for consent in their contracts with consumers in order to curb efforts to revoke consent in order to impose TCPA liability. Because the FCC regulations prohibit conditioning purchase of good or service on giving consent, businesses should strike the consent provision if a consumer objects to the provision.