Gager v. Dell Financial Services: TCPA Allows Consumers To Revoke Consent to Be Contacted Via Cell Phone

Published On September 3, 2013 | By Michele Floyd | Litigation
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MOBILE PHONEThe Third Circuit issued an opinion last week addressing an apparent issue of first impression among circuit courts:  can consumers revoke their express consent to receive autodialed calls to their cell phones?  Yes, the Third Circuit concluded, and they can do so at any time.

In Gregor, Ashley Gregor bought a significant amount of equipment from Dell and financed her purchase through Dell Financial.  When she defaulted on the loan, Dell used an automatic telephone dialing system to contact her regarding the loan.  The number that Ms. Gregor provided to Dell on the financing documents was her cell phone. Consequently, Dell was using an automatic dialing system to contact a cell phone, which took the calls out of the TCPA’s statutory “commercial purpose” exception (the “established business relationship” and  commercial purpose” exceptions found in 47 C.F.R. § 64.1200(a) (2)(iii), (iv) do not apply to cell phones).

Ms. Gregor didn’t much care to be bothered by Dell, so she sent a letter to Dell that listed her phone number and asked Dell to stop calling it. At no time did she identify the number as a cell phone number (neither on the credit application nor in the letter). Dell didn’t much care that Ms. Gregor didn’t care to be bothered and kept calling the phone number.  So, she sued.

The Third Circuit found that although the TCPA does not expressly allow a consumer to revoke consent (it is silent on the issue), allowing revocation was consistent with the spirit and purpose of the statute. The Court’s rational was based on three principles:

  1. The common law of consent provides for revocation;
  2. The TCPA is a remedial statute that must therefore be construed to benefit consumers;
  3. Allowing revocation at any time is consistent with the FCC’s decision in In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc., 27 FCC Rcd. 15391 (Nov. 26, 2012) (holding sending a text confirming an opt-out request does not violate TCPA).

The Third Circuit was reviewing the district court’s order granting Dell’s motion to dismiss, so it reversed and remanded.  The issue it did not address was the sufficiency of the revocation.  As noted above, the plaintiff simply sent a letter “revoking” her prior consent, but at no time identified the number as one associated with a cell phone.  As the Third Circuit confirmed, the TCPA treats cell phones and land lines differently. Thus, it seems that we have not seen the end of the consent/revocation issue under the TCPA.

About The Author

Michele Floyd’s practice focuses on complex business litigation, primarily representing Internet companies in federal and state litigation involving antitrust claims, state unfair competition claims, disclosure of subscriber information and other privacy-related claims and false advertising. Michele specializes in handling complex cases that involve difficult procedural issues and has extensive experience defending companies in consumer class action litigation under the unfair competition and related laws of several states, including California, Florida, Georgia, Illinois, Nevada, New York, Texas, and Washington. She has served as national counsel for clients and coordinated the defense of nationwide state litigation as well as multi-district federal litigation. Michele also assists clients, particularly internet and e-commerce clients, through often unique business and legal challenges, counseling them on regulatory compliance, multi-state advertising campaigns, promotions, distribution methods, pricing programs and general best practices aimed at minimizing the risk of litigation. She has defended and counseled clients in several industries, including the telecommunications, pharmaceutical, retail apparel, automotive, medical, and Internet industries. Her practice extends into regulatory fields, having represented clients in matters before the Federal Communications Commission, matters involving the Department of Justice and various states’ Attorney General Offices as well as state and federal agencies, such as the United States Department of Transportation and the California Department of Transportation. Previously, Michele served as Senior Legal Director, Commercial Litigation, at Yahoo! Inc., where she was responsible for managing and defending the company’s commercial litigation and counseling on general business matters such as contract disputes (including those involving Terms of Service and privacy policies), advertising and disclosures, privacy, antitrust, and audits. Before joining Yahoo!, she was a partner in the regulatory litigation practice group at a prominent national law firm where her practice focused on class action defense and spanned many industries. Michele’s services are offered to clients through ZwillGen Law LLP, an affiliate of ZwillGen PLLC.