11th Cir. Follows 2nd Cir’s Reyes Decision: Contractual Consent Cannot Be Revoked Under the TCPA

In Medley v. Dish Network, No. 18-13841, 2020 U.S. App. LEXIS 14052, at *13-18 (11th Cir. May 1, 2020) , the Court of Appeals for the Eleventh Circuit followed the Second Circuit’s Reyes decision, finding that contractual consent cannot be revoked under the TCPA.

Finally, Medley appeals the district court’s ruling in favor of DISH on her TCPA claim. The TCPA forbids “any person . . . to make any call (other than a call . . .made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1). The parties do not dispute that Medley expressly consented to be contacted by a prerecorded voice or ATDS in the Agreement. And there is no dispute that Medley unilaterally attempted to revoke that consent via the faxes her attorneys sent to DISH, yet DISH continued to contact her. The question is whether the TCPA allows unilateral revocation of consent given in a bargained-for contract. The district court found that it does not, and we agree.  The district court followed the Second Circuit’s reasoning in Reyes v. LincolnAuto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017), the only Circuit to specifically address whether the TCPA allows a consumer to unilaterally revoke consent to receive automated calls when such consent is given as part of a bargained-for exchange. Like Medley, the plaintiff in Reyes expressly consented to receive automated telephone calls to collect a debt as part of a bilateral agreement and expressly revoked his consent to receive such calls. When the defendant continued to call, the plaintiff sued for violations of the TCPA. The Second Circuit affirmed summary judgment for the defendant, holding that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.” Id. at 56. Acknowledging that the text of the TCPA is silent as to consent and “evidences no intent to deviate from common law rules defining ‘consent,'” the Circuit applied the common law contract rules defining revocation of consent in legally-binding agreements. Under such rules, although consent given voluntarily and gratuitously is revocable under common law, consent given as a mutually-agreed-upon term in a legally binding contract is not. Id. at 57-58 (citations omitted).  Like the district court, we agree with the Second Circuit. We have expressly stated that “an ‘agreement is a manifestation of mutual assent on the part of two or more persons,’ [and thus] 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.” Kuhne v. Fla. Dep’t of Corrs., 745 F.3d 1091, 1096 (11th Cir. 2014) (quoting Restatement (Second) of Contracts § 3 (Am. Law Inst. 1981); (citing 17A Am. Jur. 2d Contracts § 500 (West database updated Dec. 2013))). As Reyes notes, this rule originates from the foundational “requirement that every provision of a contract-including any proposed modification-receive the ‘mutual assent’ of every contractual party in order to have legal effect.” Reyes, 861 F.3d at 57 (citation omitted).  Medley argues such a determination is at odds with our decision in Osorio v.State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), with the Federal Communication Commission’s (“FCC”) 2015 Ruling, In the Matter of Rules &Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7994-7999 (2015) (the “2015 FCC Ruling”), and with the consumer-protection purposes of the TCPA. We are unpersuaded. Contractual consent was not at issue in Osorio or the 2015 FCC Ruling. In Osorio, we addressed oral revocation of consent when given gratuitously in a credit application. Id. at 1255. We acknowledged that the TCPA is silent “regarding the means of providing or revoking consent” and, like the Second Circuit, “presume[d] that Congress sought to incorporate ‘the common law concept of consent.'” Id. (quoting Gager v. Dell Fin.Servs., LLC, 727 F.3d 265, 270 (3d Cir. 2013); citing Neder v. United States, 527 U.S. 1, 21, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Finding oral revocation generally permissible under common-law notions of consent, we held that the debtor could “orally revoke any consent previously given” to the creditor “in the absence of any contractual restriction to the contrary.” Id. (internal quotation marks and citations omitted).  Likewise, the 2015 FCC Ruling did not address contractual consent. The FCC found that “the most reasonable interpretation of consent is to allow consumers to revoke consent if they decide they no longer wish to receive voice calls or texts.” 2015 FCC Ruling, 30 F.C.C. Rcd. at 7993-94. The FCC stated that “an interpretation that would lock consumers into receiving unlimited, unwanted texts and voice calls is counter to the consumer-protection purposes of the TCPA and to common-law notions of consent.” Id. at 7994. Neither Osorio nor the 2015 FCC Ruling addresses consent given in a legally binding agreement. Instead, Osorio and the FCC 2015 Ruling address consent given generally and rely on common law tort principles to find that consent is revocable under the TCPA. See Osorio, 746 F.3d at 1253 (citing to RESTATEMENT(2D) OFTORTS); 2015 FCC Ruling, 30 F.C.C. Rcd. at 7994 n.223 (citing to the RESTATEMENT(2D) OFTORTS§ 892A, cmt. i. (1979)). Here, however, Medley gave consent as a mutually-agreed-upon term in a contract; therefore, we must analyze revocation of consent under the common law principles governing contracts. As discussed above, common law contract principles do not allow unilateral revocation of consent when given as consideration in a bargained-for agreement.  We, like the Second Circuit, are also unpersuaded by the argument that unilateral revocation of consent given in a legally binding agreement is permissible because it comports with the consumer-protection purposes of the TCPA. “It was well-established at the time that Congress drafted the TCPA that consent becomes irrevocable when it is integrated into a binding contract, and we find no indication in the statute’s text that Congress intended to deviate from this common-law principle in its use of the word ‘consent.'” Reyes, 861 F.3d at 58 (citing Neder v.United States, 527 U.S. 1, 21, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Permitting Medley to unilaterally revoke a mutually-agreed-upon term in a contract would run counter to black-letter contract law in effect at the time Congress enacted the TCPA. “Absent express statutory language to the contrary, we cannot conclude that Congress intended to alter the common law of contracts in this way.” Reyes, 861 F.3d at 59 (citing Neder, 527 U.S. at 21-23, 119 S.Ct. 1827).