The right for individuals to revoke consent to be contacted has been a hot-button issue for nearly two years and the issue continues to come up again and again in lawsuits filed against collection agencies, creditors, and other participants in the ARM industry.
Yesterday, for example, in the case of Reyes, Jr. v. Lincoln Automotive Financial Services, the Second Circuit Court of Appeals upheld a summary judgment in favor of a creditor, ruling that an individual does not have the right to revoke consent to be contacted when the consent is granted as part of a contract. In this case, the contract was an automobile lease.
When the Federal Communications Commission issued a declaratory ruling in July 2015 that overhauled much of the Telephone Consumer Protection Act, individuals were given the right to revoke consent by any “reasonable” means and that companies were going to have to honor those requests. Yesterday’s ruling was outside of the FCC’s order because it covers individuals who “freely and unilaterally” provide consent. In this lawsuit, the consent was provided as part of a contract, and was not given freely, the Court determined. This ruling, which can be downloaded here, splits from other rulings at the Appellate level.
Reyes’s consent to be contacted by telephone, however, was not provided gratuitously; it was included as an express provision of a contract to lease an automobile from Lincoln. Under such circumstances, “consent,” as that term is used in the TCPA, is not revocable.
Published reports have called the ruling the Reyes case a “big win for the defense bar.”
The FCC had relied on rulings from the Third Circuit and Eleventh Circuit Courts of Appeals in determining that individuals had the right to revoke consent. The Reyes case, however, may be the first time that a court has been asked to rule on consent in the context of a “bargained‐for consideration in a bilateral contract.”
LiveVox dedicated an entire hour-long webinar to the topic of TCPA and consent yesterday, coincidentally enough. The panelists sifted through a number of legal decisions related to consent and how those decisions are impacting companies, including those in the ARM industry.
The battle between plaintiffs and defendants over consent is one that will not end until either the FCC or Congress choose to address it, or if the D.C. Court of Appeals, which heard arguments in a case brought by ACA International against the FCC, determines that the agency’s 2015 ruling is unconstitutional.
“Plaintiffs are always trying to narrow down consent,” said Mark Mallah the general counsel of LiveVox during yesterday’s webinar.
When it comes to consent, companies should never put themselves “in a situation where a claimant can argue they couldn’t revoke consent by the means you gave them,” said Matt Foree, a lawyer at the law firm of Freeman, Mathis & Gary
