The Eleventh Circuit Court of Appeals has upheld a ruling in favor of a defendant that was sued for violating the Telephone Consumer Protection Act because it contacted the plaintiff after she had revoked consent to be contacted, but the consent was part of a contract, which means it can not be revoked.
A copy of the ruling in the case of Medley v. DISH Network can be accessed by clicking here.
The plaintiff entered into an agreement with the defendant. As part of the agreement, the plaintiff provided her cell phone number to the defendant and offered her express permission to be contacted using an automated telephone dialing system to “recover any unpaid portion” of her obligation to the defendant. The plaintiff filed for bankruptcy protection but did not include all of the debt owed to the plaintiff in her filing and failed to mention a separate contract she had entered into with the defendant. The plaintiff’s bankruptcy lawyers sent the defendant two faxes that, among other things, revoked consent to be contacted. But the defendant continued to contact the plaintiff, at which point she sued, alleging the defendant violated the TCPA.
A District Court judge sided with the defendant, because the separate agreement had not been discharged in bankruptcy, consent was not revoked because it was provided as part of a bargained-for contract. The plaintiff appealed the ruling to the Eleventh Circuit.
In agreeing with the Second Circuit Court of Appeals, which first dealt with this type of situation in Reyes v. Lincoln Financial Services, the Eleventh Circuit ruled that common law principles “do not allow unilateral revocation of consent when given as consideration in a bargained-for agreement,” it wrote. “We, like the Second Circuit, are also unpersuaded by the 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.”
