In Lawrence v. Bayview Loan Servicing, LLC, — Fed.Appx. —-2016 WL 7407243 (11th Cir. 2016), the Court of Appeals for the 11th Circuit found that a TCPA re-established consent to be called by an autodialer when he gave his telephone number again to the caller without qualification.
Lawrence argues that the District Court erred by finding that, as a matter of law, his inclusion of his cell number in letters sent to Bayview functioned as a renewal of prior express consent under the TCPA. He claims that because these letters involved discrete problems with his loan, primarily a dispute with Bayview over the nature of his homeowner’s insurance, his consent to receive calls should have been restricted to those issues. Accordingly, communications from Bayview that fell outside of that limited context were not consented to and should subject the company to TCPA liability. In support of this argument, Lawrence primarily relies on the common law understanding that the trier of fact must typically determine the appropriate scope of consent based on the circumstances surrounding that consent. We do not quibble with Lawrence’s characterization of the law governing the scope of consent under the TCPA. As we previously decided in Osorio, Congress intended for the common law to illuminate the proper approach to determining the scope of consent under the TCPA. See Osorio, 746 F.3d at 1255 (explaining that in the TCPA context we presume “Congress sought to incorporate ‘the common law concept of consent’ ”) (citation omitted).4 Accordingly, a consumer can orally revoke consent, and consent can be limited by the particular circumstances under which it was granted. But, it is equally clear that the provision of a mobile phone number, without limiting instructions, suffices to establish the consumer’s general consent to be called under the TCPA. See 1992 FCC Ruling, 7 FCC Rcd. at 8769. As Congress has explained, the provision of a cell phone number during an ordinary business communication is essentially a request for contact at the provided number. H.R. Rep. No. 102–317, at 13 (explaining that when a caller provides their phone number in a normal business communication “the called party has in essence requested contact”). Here, Lawrence’s letters simply do not provide a basis for limiting the scope of his consent, and simply operate to make his cell phone number generally available to Bayview, his creditor. Indeed, the specialized statutory context of the TCPA is not required to find a renewal of consent as a matter of law. Common law principles also reveal that Lawrence’s letters provided a sufficient basis for the District Court find that he had renewed his consent to receive phone calls placed by Bayview’s ATDS. Under the common law approach to consent relied on by Lawrence, “words or conduct … reasonably understood by another to be intended as consent … [are] as effective as consent in fact.” Restatement (Second) Of Torts § 879 (1979). So, even if Lawrence did not intend to consent in fact to calls placed by an ATDS system, he nevertheless provided apparent consent by repeatedly providing his cell phone number to Bayview without qualification. Lawrence’s communications never suggest he only wished to be contacted regarding certain issues, nor do they mention his desire not to be contacted via ATDS. Instead, Lawrence’s letters all involve a routine issue with the servicing of his mortgage, and display a general willingness to be contacted with any “Questions/Requests.” Quite simply, as the District Court explained, “[t]here is no dispute that Plaintiff knowingly provided his cellular telephone number to Bayview and did so with the expectation that Bayview would use that number to contact him directly.” This is more than sufficient to meet the common law definition of consent, and the District Court did not err in finding that consent existed as a matter of law.