District Court (Fla.) Says No MSJ for Anyone Where Factual Question of Whether TCPA Consent was Revoked

In Hitchman v. National Enterprise Systems, Inc., 2014 WL 912363 (S.D.Fla. 2014), Judge Marra denied cross-motions for summary judgment due to a factual question of whether the Plaintiff orally revoked consent to receive autodialed calls on her cellular telephone.

The TCPA is silent on whether a consumer may revoke previously-granted consent to receive calls on her cellular telephone. It is clear under the statute that damages cannot be awarded if the caller has the “prior express consent of the called party.” See Munro v. King Broad. Co., C13–1308JLR, 2013 WL 6185233, *2 (W.D.Wash. Nov. 26, 2013) citing 47 U.S.C. § 227(b)(1) (A). The Eleventh Circuit has not addressed the issue of revocation of prior express consent (by written or oral instruction) under the TCPA. District Courts grappling with the issue have come out with varying conclusions, including that consent may never be revoked, that consent may be revoked but only by a writing, and that consent may be revoked either in writing or orally. ¶  It appears a majority of courts conclude that consent may be revoked under the TCPA, and that if messages continue after consent is revoked, those messages violate the TCPA. See, e.g., Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268–272 (3d Cir.2013) (“the TCPA’s silence as to revocation should not be seen as limiting a consumer’s right to revoke prior express consent. Instead, we view the silence in the statute as evidence that the right to revoke exists”); Legg v. Voice Media Grp., Inc., 13–62044–CIV, 2014 WL 29594, *3 (S.D.Fla. Jan. 3, 2014) (denying motion to dismiss because Plaintiff sufficiently pled that he revoked his consent to receive text messages from Defendant); Beal v. Wyndham Vacation Resorts, Inc., 956 F.Supp.2d 962, 977 (W.D.Wis.2013) ( “consumers can revoke their consent to receive autodialer calls under the Telephone Consumer Protection Act and may do so orally”); Adamcik v. Credit Control Servs., Inc., 832 F. Su pp.2d 744, 749 (W.D.Tex.2011) (relying on common law principles to conclude that consumers may revoke consent to receive autodialer calls under the TCPA and that they may do so orally or in writing); Moore v. Firstsource Advantage, LLC, No. 07–CV–770, 2011 WL 4345703, at *11–12 (W.D.N.Y. Sept. 15, 2011) (oral request to cease making autodialer calls ineffective, written revocation required under the TCPA); Sengenberger v. Credit Control Servs., Inc., No. 09 C 2796, 2010 WL 1791270, at *4 (N.D.Ill. May 5, 2010) (because consent revoked in writing, all calls made after that were violative of the TCPA); Munro v. King Broad. Co., C13–1308JLR, 2013 WL 6185233, *3 (W.D.Wash. Nov. 26, 2013); FN1 Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal.2011) (a consumer can revoke consent given under the TCPA orally or in writing because the statute does not require revocation to be in writing). ¶  Plaintiff alleges that she orally revoked consent to the original creditor, HSBC, while the debt was still in the hands of the original creditor. Thus, Plaintiff asserts, there was no consent to automated calls associated with the debt when the original creditor sold the debt to Defendant’s client, on whose behalf it placed the calls. Defendants rely on the cases that hold that consent may not be revoked, and if it can be revoked, it must be revoked in writing. Defendants cite to Osorio v. State Farm Bank, FSB, 859 F.Supp.2d 1326 (S.D.Fla.2012) (Middlebrooks, J.) where the Court held, as a matter of law, that verbal revocation was insufficient to revoke prior express consent under the TCPA. Osorio, 859 F.Supp.2d at 1331.FN2 Defendants also urge the Court to adopt the reasoning of other district courts which go so far as to hold that because the TCPA does not provide for revocation of prior express consent by any means, the legislative intent of Congress in enacting the TCPA was to forbid it. See e.g., Saunders v. NCO Fin. Sys., Inc., 910 F.Supp.2d 464, 469 (E.D.N.Y.2012); Kenny v. Mercantile Adjustment Bureau, LLC, 10–CV–1010, 2013 WL 1855782, *7 (W.D.N.Y. May 1, 2013) (“there is no provision in the TCPA, unlike the FDCPA … that allows withdrawal of a voluntarily-given, prior express consent to call a cell phone number”). ¶  Because the TCPA is a consumer protection statute that is remedial in nature, this Court is inclined to align with the Third Circuit and construe the TCPA liberally in favor of consumers. Gager, 727 F.3d at 271; accord Carmichael v. Nissan Motor Acceptance Corp., 291 F.3d 1278, 1280 (11th Cir.2002) (per curiam) (“Like the TILA, the CLA is a consumer protection statute which ‘is remedial in nature and therefore must be construed liberally in order to best serve Congress’ intent.’ ”); Legg v. Voice Media Grp., Inc., 13–62044–CIV, 2014 WL 29594, *3 (S.D.Fla. Jan. 3, 2014). This means that if Plaintiff can establish that she revoked consent, Defendant would be liable under the TCPA for any calls made subsequent to that revocation. This Court finds that genuine issues of material fact exist as to whether Plaintiff actually revoked her consent. As a result, neither party is entitled to summary judgment. Therefore, this case must be placed back on track for trial.