District Court (Minn.) Says Credit Card Agreement Did Not Preclude Oral Revocation of Consent under the TCPA Because Manner of Contact Was Not an Essential Part of the Agreement

In Wright v. Target Corporation, 2015 WL 8751582, at *7 (D.Minn., 2015), Judge Nelson denied summary judgment, saying there were triable issues of material fact as to whether the debtor orally revoked revocation of consent under the TCPA.  The District Court found that the Target credit card agreement did not preclude revocation of consent.

Defendant also argues that Wright could not unilaterally alter the consent term in the parties’ credit agreement, because it was an integral and essential part of the bilateral, written agreement. As noted, the TCPA requires prior express consent for entities such as Defendant to place autodialed calls to its customers. 47 U.S.C. § 227(b)(1)(B). The Court is persuaded by the reasoning of the Third Circuit in Gager that the prior express consent to receive autodialed phone calls is not an essential element of the contractual relationship between the parties. As that court explained “Dell asserts that basic principles of contract law should preclude Gager from revoking her prior express consent. In short, Dell posits that a creditor will want to know in advance whether a credit applicant will consent to automated phone calls and that this knowledge is part of the “consideration” that the applicant offers in support of her application. Although Dell is correct that the level of contact that a debtor will consent to may be relevant to the negotiation of a line of credit, the ability to use an autodialing system to contact a debtor is plainly not an essential term to a credit agreement. More importantly, Dell’s argument that its contractual relationship with Gager somehow waives her rights under the TCPA is incorrect. The fact that Gager entered into a contractual relationship with Dell did not exempt Dell from the TCPA’s requirements. As discussed above, she retained the right to revoke her prior express consent.  Id. at 273-74. That same reasoning applies here. In his Amended Answers to Defendant’s Requests for Admission, Wright admits that while he could not unilaterally alter the interest charges or late fees applicable to his Target credit card account, he could revoke his consent to be contacted on his cell phone by an autodialed call from Target as the parties’ agreement is governed by federal law. (Target Consumer Credit Agreement ¶ 12, Ex. F to Lavery Cert. [Doc. No. 22-6 at 19].) The essential terms of the parties’ agreement related to use of the credit card, payments, interest charges, and the calculation of fees. The particular form and manner in which Target could contact Wright was not an essential part of the agreement. Moreover, noted herein, the Court finds that revocation of prior express consent is permitted under the TCPA.