Contractual consent provisions are revocable, a Pennsylvania federal district court recently held in a Telephone Consumer Protection Act (TCPA) lawsuit, although it sent the issue of whether the plaintiff effectively revoked his consent to a jury.
The case is Allen v. First National Bank of Omaha. During a phone call on May 25, 2016, with First National Bank of Omaha, Harold Allen, the plaintiff, allegedly stated: “I ask that you please stop calling any phone number regarding any account, but you can contact me by mail.”
The call was recorded and transcribed. A representative of the bank testified that she believed Allen’s request was specific to telemarketing and removed his phone number from the telemarketing list. But when Allen failed to make payments on his credit card accounts, however, the bank called his cell phone 594 times; 236 of which calls were allegedly made using a prerecorded voice.
After he filed suit, Allen filed a motion for partial summary judgment. U.S. District Judge Robert D. Mariani denied the motion, finding that disputed issues of material fact remained surrounding whether Allen effectively communicated revocation of his prior consent.
The bank argued that Allen was unable to revoke his consent unilaterally because it was based on a contract (specifically, his cardholder agreement).
But the U.S. Court of Appeals, Third Circuit, had previously held that the TCPA allows consumers to revoke their prior express consent to receive calls regulated by Section 227(b), Mariani noted, and the Federal Communications Commission (FCC) has also stated that consumers may revoke their consent.
Mariani was also not persuaded by the bank’s reliance on the Second Circuit’s decision in Reyes v. Lincoln Automotive Financial Services, as the Third Circuit had previously “explicitly rejected this contract law-based argument” and found that “the ability to use an autodialing system to contact a debtor is plainly not an essential term to a credit agreement.” As Mariani noted, the fact that someone enters into a contractual relationship with the defendant does not make the defendant exempt from the TCPA’s requirements, according to the Third Circuit.
A review of the record, however, revealed that facts remained in dispute, Mariani wrote.
During Allen’s May 25 phone call, he indicated that he was calling about both of his accounts with the bank and asked what address it had on file for him. When the address was read to him, Allen then made his request for phone calls to stop.
The bank representative responded, “Ok, let me … I have to go into those separately to do that. Um, bear with me one moment.” Allen replied, “Ok,” and a few moments later said, “Alright, I appreciate your assistance, ma’am. Thank you,” and ended the call.
But Allen hung up before the representative could clarify his intentions regarding what types of calls he was referring to—all communications or just telemarketing and solicitation calls. Based on company procedures and training, the representative testified that she understood Allen to be asking that he be removed from any telemarketing and solicitations in the future.
“In sum, [Allen] asserts that the May 25, 2016 phone call constituted a request for [the bank] to stop contacting him by phone for any reason, but [the bank] asserts that, consistent with its policies, it understood the May 25, 2016 phone call as a request by [Allen] to be removed from [the bank’s] solicitation and telemarketing calls,” Mariani explained. “Thus, considering the totality of the circumstances, the record reflects a factual dispute regarding whether [Allen] effectively communicated his revocation of consent to be contacted by phone.”
Thus, “a jury must determine whether, under the ‘totality of the facts and circumstances surrounding that specific situation,’ [Allen] ‘had a reasonable expectation that he [] could effectively communicate his [] request for revocation to the caller in that circumstance,’ considering that [Allen] hung up the phone immediately after the customer service representative told him to stay on the line so she could complete his request,” the court said. “Although this case presents a close call, it is within the province of the jury, not the court, to resolve such genuine factual disputes.”
To read the memorandum opinion in Allen v. First National Bank of Omaha, click here.
Why it matters: The Pennsylvania court’s decision is something of a mixed bag for TCPA defendants. On the one hand, the court agreed with the plaintiff that contractual consent to be contacted may be revoked, at least in the Third Circuit. However, the court also found that the question of revocation should be answered by a jury and that the defendant presented sufficient facts in dispute regarding the plaintiff’s efforts at revocation to survive summary judgment. It also shows that, consistent with FCC rulings and other court decisions, a plaintiff must clearly and unambiguously revoke his or her consent to receive telemarketing calls before the revocation can be legally effective.