October 11 2017
Consent can be partially revoked pursuant to the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals, Eleventh Circuit recently held.
Emily Schweitzer provided Comenity Bank with her cellphone number when she applied for a credit card. In 2013, when she failed to make required payments on the account, Comenity began placing calls to her cellphone concerning the delinquency.
On Oct. 13, 2014, a Comenity employee called Schweitzer, told her she was two payments behind on her account and asked if she could make a $35 payment. Schweitzer responded: "Unfortunately I can't afford to pay 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."
A few months later, on March 19, 2015, a different Comenity employee called Schweitzer about her still past-due account. Twice during the conversation, Schweitzer asked for the calls to stop. For example, she said: "Can you just please stop calling me? I'd appreciate it, thank you very much."
Comenity did not place any more automated calls to Schweitzer's phone after this conversation, but she filed suit against the bank for violations of the TCPA. She claimed that during the Oct. 13 conversation, she revoked her consent to have Comenity make calls to her cellphone and that despite her revocation, the bank made more than 200 automated calls through March 2015.
A district court judge granted Comenity's motion for summary judgment, writing that Schweitzer didn't define or specify the parameters of the times she did not want to be called and that no reasonable jury could find she revoked her consent to be called.
On appeal, the Eleventh Circuit reversed.
"The TCPA allows a consumer to partially revoke her consent to receive automated calls, and there is an issue of material fact as to whether Ms. Schweitzer's statements during the October 13 conversation constituted a revocation of consent to be called in the morning and during the work day," the court said.
Comenity argued that the TCPA does not permit partial revocations of consent and only allows for unequivocal requests for no further communications whatsoever.
Although the statute itself is silent on the issue of revocation, the panel looked to a 2014 decision where it held that a consumer may orally revoke her consent to receive automated phone calls, inferring that Congress intended for the TCPA to incorporate the common-law understanding of consent.
At common law, consent is a willingness for certain conduct to occur, and such willingness can be restricted or limited, the court explained, so that if an actor exceeds the consent provided, the permission granted does not provide protection from liability. Support for this position can be found in other areas of federal law, such as the federal wiretapping statute (where a person can agree to having only certain calls being recorded) and the Fourth Amendment, which allows a person to provide limited consent to a search.
"We therefore conclude that the TCPA allows a consumer to provide limited, i.e., restricted, consent for the receipt of automated calls," the Eleventh Circuit wrote. "It follows that unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA. … Our conclusion is supported by the maxim that the greater power normally includes the lesser. We think it logical that a consumer's power under the TCPA to completely withdraw consent and thereby stop all future automated calls, encompasses the power to partially withdraw consent and stop calls during certain times."
The panel was not persuaded by the bank's contention that partial revocation might present logistical and technical challenges, as the "potential for such complications … is not enough to limit a consumer's powers under the TCPA."
Turning to whether Schweitzer's statement on Oct. 13 constituted a partial revocation of consent under the statute, the court found it "close" but allowed the suit to move forward. "A jury could certainly find that Ms. Schweitzer … was too equivocal, but we do not think that the lack of specificity is fatal to her claim of partial revocation," the court said.
The plaintiff's references to "the morning" and "the work day" can be understood in the context of a customer trying to get a creditor not to call her at certain times of the day, the panel said, emphasizing that the "meaning of language is inherently contextual." The court also noted that Comenity employees testified that they understood what Schweitzer meant by her request and did not need to ask her for clarification.
"We believe a reasonable jury could conclude that Ms. Schweitzer did not want automated calls in the several hours between the time one wakes up and goes to school or work (say the couple of hours from 6:00 or 7:00 a.m. to 8:00 or 9:00 a.m.), or during a typical work day (say the eight hours from 8:00 or 9:00 a.m. to 4:00 or 5:00 p.m.)," the court wrote. "Under the TCPA, a consumer may partially revoke her consent to receive automated phone calls. The 'issue of consent is ordinarily a factual issue,' and here summary judgment was inappropriate because a reasonable jury could find that Ms. Schweitzer partially revoked her consent to be called in 'the morning' and 'during the workday' on the October 13 phone call with a Comenity employee."
To read the opinion in Schweitzer v. Comenity Bank, click here.
Partial revocation by a consumer presents many practical and technical hurdles for businesses, as well as potential evidentiary challenges. While Comenity Bank requested rehearing en banc by the Eleventh Circuit, arguing that the panel decision conflicts with prior rulings, TCPA plaintiffs will no doubt seize upon this ruling to support claims based on spotty revocation. Companies should take this opportunity to review their policies on honoring requests for calls to stop and consider whether new policies should be enacted to cover partial revocation, like that in this case.
For further information on this topic please contact Christine Reilly at Manatt Phelps & Phillips LLP's Los Angeles office by telephone (+1 310 312 4000) or email (firstname.lastname@example.org). Alternatively, contact Diana L Eisner at Manatt Phelps & Phillips LLP's Washington DC office by telephone (+1 202 585 6550) or email (email@example.com). The Manatt Phelps & Phillips LLP website can be accessed at www.manatt.com.
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