Marc Wites. (Wites & Kapetan handout)
The U.S. Court of Appeals for the Eleventh Circuit has issued a ruling bolstering the right of say no to unwanted phone calls.
The court reversed a Florida district judge and turned up the volume on the Telephone Consumer Protection Act, reviving a lawsuit filed by a woman who asked a creditor not to call while she was working.
The important issue is whether consent to be called can be partially revoked. Judge Adalberto Jordan said it can in a decision released Thursday. Judge Jill Pryor concurred, along with District Judge L. Scott Coogler of the Northern District of Alabama, sitting by designation.
“In law, as in life, consent need not be an all-or-nothing proposition,” Jordan wrote. “Having already concluded that the Telephone Consumer Protection Act … allows for the oral revocation of consent, see Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014), we now hold that the Act permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system.”
The Telephone Consumer Protection Act (TCPA) makes it unlawful for “any person,” absent the “prior express consent of the called party,” to make any nonemergency call “using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service,” Jordan said. Anyone who violates that law may be sued in federal court for “actual monetary loss” or $500 in damages for each violation, “whichever is greater.” Knowing or willful violations rate treble damages.
Jordan reversed Judge Donald Middlebrooks of the Southern District of Florida in dismissing Emily Schweitzer’s complaint against Comenity Bank. Behind on her credit card payments, she told a caller this on Oct. 13, 2014:
“Unfortunately I can’t afford to pay [my past due payment] 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.”
The employee replied, “It’s a computer that dials. We can’t stop the phone calls like that.” And the calls did not stop until she gave instructions to stop all calls five months later. In the meantime, she contends Comenity violated the TCPA by calling her 200 times.
While the trial judge ruled that “no reasonable jury” could find she revoked her consent, the appeals court said a jury should decide. The panel reversed Middlebrooks in granting Comenity summary judgment.
Comenity was represented by Dale Golden of Golden Scaz Gagain in Tampa. Golden could not be reached immediately for comment.
A veteran TCPA defense attorney, Eric Troutman of Dorsey & Whitney, took issue with the decision in a statement Thursday. Troutman criticized the conclusion and even the length—15 pages.
“The decision is as brief as it is stunning and circular,” Troutman said. “The court spends a mere two paragraphs analyzing the issue of partial revocation and cites to nothing more than the legal maxim that ‘the greater power normally includes the lesser’ to conclude that the power to consent partially implies the ‘lesser’ power to revoke partially.”
Troutman also complained that Jordan “sweeps aside the obvious logistical and technical challenges to callers” imposed by the ruling. (Jordan did note it might be more expensive but said it is possible to limit times of calls.)
The winning lawyer, Marc Wites of Wites & Kapetan in Lighthouse Point, Florida, called the decision an important ruling.
“Ms. Schweitzer is thankful for and looking forward to having her day in court,” Wites said. He added that he expects that a jury will believe Comenity’s witnesses, “who have testified that they understood that Ms. Schweitzer was instructing them to stop calling.”
The case is Schweitzer v. Comenity Bank, No. 16-10498.