Cellphone customers may revoke their consent to receive robocalls on those devices, the Third Circuit has ruled in a case of first impression.
Interpreting the Telephone Consumer Protection Act broadly, the U.S. Court of Appeals for the Third Circuit reversed the district court's holding based on rules from the Federal Communications Commission and common-law treatment of consent.
By its own reckoning, the Third Circuit is the first circuit to address the issue of whether consumers have a right to withdraw their prior consent to be robocalled on their cellphones and if there would be a time limit on that right. The three-judge panel ruled that the right exists and there is no time limit on it.
"Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls," Senior Judge Jane R. Roth wrote on behalf of the panel, which included Judges Julio M. Fuentes and Patty Shwartz.
"Notably," Roth said, setting up her discussion, "the statute does not contain any language expressly granting consumers the right to revoke their prior express consent."
The court looked to rules from the FCC because Congress gave it the authority to regulate and enforce the TCPA, which was passed in 1991.
The FCC issued a declaratory ruling with the most relevant guidance it has yet offered on the issue after the district court dismissed the case.
Last November, the FCC offered an analysis that "was directed at the use of an automated dialing system to confirm an opt-out request, rather than whether an opt-out right exists," Roth said, but "the decision indicates that the FCC supports Gager's argument that a consumer may revoke her prior express consent once it is given."
Ashley Gager brought her case against Dell Financial Services, the consumer lending arm of the computer giant, when she fell behind on a loan and was inundated with automated phone calls. Gager had initially given Dell her cellphone number when she opened a line of credit in 2007, but sent the company a letter in 2010 requesting that the company stop calling her.
However, the trial court, in the Middle District of Pennsylvania, had held in June 2012 that the TCPA didn't explicitly include a right for people to revoke their consent for being called, so that right didn't exist and Gager's letter revoking her initial consent would be moot.
Several district courts in other circuits have followed that line of reasoning.
However, the Third Circuit, especially in light of the FCC's declaratory ruling last November, disagreed.
"Although the TCPA does not expressly grant a right of revocation to consumers who no longer wish to be contacted on their cellular phones by autodialing systems, the absence of an express statutory grant of this right does not mean that the right to revoke does not exist," Roth said.
She summed up the court's reasoning this way: "First, our understanding of the common-law concept of consent shows that it is revocable. Second, in light of the TCPA's purpose, any silence in the statute as to the right of revocation should be construed in favor of consumers. Finally, the FCC's decision in SoundBite provides further evidence that we have reached the correct result in this case." SoundBite is the name of the declaratory ruling that the FCC made in November.
"Our holding that the TCPA allows consumers to revoke their prior express consent is consistent with the basic common-law principle that consent is revocable," she said.
When you sign up for a loan and give your phone number, you expect to get phone calls, but you don't expect to get them for life, said Gager's attorney, Cary Flitter of Flitter Lorenz in Narberth, Pa.
During arguments in the case, which were in May, Roth had asked how someone is able to stop the calls, Flitter recalled.
You can die or declare bankruptcy, he said.
Two of the three judges on the panel — Fuentes and Roth — had been getting marketing robocalls on their cellphones, Flitter said.
He saw the opinion as significant in the sheer number of people that it will affect as well as for its weight in favor of consumer privacy.
"It's not an overstatement to say hundreds of millions of these robocalls are being made," Flitter said.
Anthony Gallia of Duane Morris argued on behalf of Dell and couldn't be reached for comment.
(Copies of the 18-page opinion in Gager v. Dell Financial Services, PICS No. 13-2486, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)