If a consumer signs a contract with a creditor in which the consumer consents to be called, can he or she later revoke that consent if they simply change their mind? In a significant decision under the Telephone Consumer Protection Act, a District Court in the Eleventh Circuit recently said they cannot. A consumer cannot unilaterally modify the contract – and revoke consent to be called – when that consent was part of a bargained-for-exchange.
In Medley v. Dish Network, LLC, consumer plaintiff Linda Medley entered into an agreement with Dish Network in connection with her satellite service in which she agreed that Dish Network could “contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system … .” Subsequently, in an effort to stop calls, Medley attempted to revoke her prior express consent by faxing her revocation to Dish. When Dish’s calls to Medley did not cease, she sued the company for violation of the TCPA.
The TCPA prohibits any person from making calls to a cellular telephone using an artificial or prerecorded voice, or using an automatic telephone dialing system, unless the call is made for emergency purposes or with prior express consent of the called party. In Medley, Dish claimed that the consumer could not revoke her contractual consent and, therefore, the calls to her were permissible. Medley countered that the TCPA allowed her to revoke consent and that she did so by fax. The battle lines were drawn. Could a consumer revoke TCPA consent that was included in a bargained-for contract simply because she changed her mind about being called?
Although the Eleventh Circuit has not addressed this issue yet, the District Court followed a developing line of cases, beginning with the Second Circuit’s Reyes v. Lincoln Automotive Financial Services decision, holding that TCPA consent is not unilaterally revocable when it is contained in an express provision of a contract. The Court agreed that “it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed.” As a result, the Court found Medley’s revocation ineffectual and concluded that Dish did not violate the TCPA.
TCPA cases around the country are replete with examples of consumers attempting to revoke contractual consent – and racking up significant damages in the process. The Medley decision puts a significant dent in the validity of that type of alleged revocation.