Consumers May Not be able to Revoke Consent to Calls Under TCPA
Posted: Wednesday, August 09, 2017
Earlier this month, the Second Circuit ruled in favor of the business world when it held in Reyes v. Lincoln Automotive Financial Services that a consumer cannot revoke consent to receive automated or prerecorded phone calls on a mobile device. This is a harmful decision for consumers everywhere who are sick and tired of getting robo-dialed on their cell phones.
The Court's Decision
In the newly decided Reyes case, the court held that when a consumer gives consent knowingly and it is part of a bargained for agreement between the consumer and creditor/caller, the consent to receive automated communication cannot be revoked. This decision creates quite a hurdle for consumers filing suit under the Telephone Consumer Protection Act (“TCPA”), a consumer minded statute, in other districts across the country.
What is the TCPA?
The TCPA is a federal statute enacted to restrict telephone solicitations and the use of automated telephone equipment. The statute limits the use of automated dialers, prerecorded voice messages, text messages and fax machines. In the Second Circuit’s opinion, it seems that the purpose of the statute was overlooked and leaves a lot of room for confusion as to what a consumer’s rights are under the TCPA, and why it was enacted.
The Reyes Case
In the Reyes case, the plaintiff, signed a car lease with the defendant Lincoln Automotive Financial Services. The lease agreement contained a provision allowing Lincoln to send Reyes text messages and prerecorded voice messages using an automated dialing system. Sometime thereafter, Reyes defaulted on his lease payments and the automated communication from Lincoln began. In his complaint, Reyes alleged that Lincoln called him 141 times with a representative on the line and 389 times with a prerecorded voice message. Reyes stated that he sent a cease and desist letter to Lincoln demanding they stop calling his cell phone. The court held that Reyes had previously agreed to allow Lincoln to communicate with him through automated dialing systems and under contractual law, he could not just unilaterally (on his own) cancel that portion of the agreement. As Reyes signed a contract consent to this type of communication, the right to call and send texts was part of the deal negotiated between the parties. Therefore, both parties would have to agree to discontinue the entire contract.
How this Verdict Affects the TCPA
This decision is concerning for consumers nationwide as it has the potential to undermine the entire purpose of the TCPA. If a consumer consents to receiving contact by an automated dialer from a creditor and then finds the creditor’s contact abusive, the consumer will have no means of recovery and essentially cannot demand the creditor cease and desist unless the creditor agrees. On a positive note, the court does go on to say that a creditor may not require a consumer to agree to receive automated contact as such conduct would undermine the purpose of the statute.
Still, if you have never consented to receiving automated calls, then those calls to your cell phone are still valid, actionable cases. If you believe your rights have been violated under the TCPA and would like the advice or assistance of counsel, contact SmithMarco P.C. for a completely free case review.