3d Circuit Says TCPA Permits Consumer to Revoke Consent to be Called by Autodialer on Cellular Telephones

In Gager v. Dell Financial Services, LLC, — F.3d —-, 2013 WL 4463305 (2013), the Court of Appeals for the Third Circuit held that the TCPA permits a consumer to revoke consent to be called by an autodialer on their cellphones.

Dell’s principal argument is that the TCPA’s silence as to whether a consumer may revoke her prior express consent to be contacted via an autodialing system supports the conclusion that the right does not exist. The District Court adopted the same reasoning, as have several other district courts. See Gager, 2012 WL 1942079, at *4–5; Kenny v. Mercantile Adjustment Bureau, LLC, No. 10–cv–1010, 2013 WL 1855782, at *7 (W.D.N.Y. May 1, 2013); Saunders v. NCO Fin. Sys., Inc., 910 F.Supp.2d 464, 468–69 (E.D.N.Y.2012). We disagree. Although the TCPA does not expressly grant a right of revocation to consumers who no longer wish to be contacted on their cellular phones by autodialing systems, the absence of an express statutory grant of this right does not mean that the right to revoke does not exist. ¶  ¶  Dell’s argument relies on a comparison of the rights granted in the TCPA with the rights granted in other consumer protection statutes. The gist of Dell’s argument is as follows: the TCPA does not contain an express provision authorizing a consumer to revoke her prior express consent to receive autodialed calls to her cellular phone. Yet, Congress has passed several other remedial consumer protection statutes—most notably the 1977 amendments to the Fair Debt Collection Practices Act (FDCPA), the CAN–SPAM Act of 2003, and the Junk Fax Protection Act of 2005—containing statutory avenues for a consumer to stop unwanted communications and solicitations.FN3 See 15 U.S.C. § 1692c(c) (FDCPA); 15 U.S.C. § 7704(a)(3)(A)(i) (CAN–SPAM Act); 47 U.S.C. § 227(b)(2)(D)(ii) (Junk Fax). The passage of these statutes shows that—both before and after the passage of the TCPA in 1991—Congress was willing and able to create revocation rights in consumer protection statutes. According to Dell, the incongruity between these statutes and the TCPA supports the conclusion that the TCPA does not permit a consumer to revoke her prior express consent once it has been given.  ¶  However, we conclude that the absence of an express statutory authorization for revocation of prior express consent in the TCPA’s provisions on autodialed calls to cellular phones does not tip the scales in favor of a position that no such right exists. We reach this conclusion for three reasons. First, our understanding of the common law concept of consent shows that it is revocable. Second, in light of the TCPA’s purpose, any silence in the statute as to the right of revocation should be construed in favor of consumers. Finally, the FCC’s decision in SoundBite provides further evidence that we have reached the correct result in this case.  ¶  Our holding that the TCPA allows consumers to revoke their prior express consent is consistent with the basic common law principle that consent is revocable. “[W]here Congress uses terms that have accumulated settled meaning under … the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” Neder v. United States, 527 U.S. 1, 21 (1999). Here, we conclude that Congress did not intend to depart from the common law understanding of consent because the statute does not treat the term differently from its common law usage. Under the common law understanding of consent, the basic premise of consent is that it is “given voluntarily.” Black’s Law Dictionary, 346 (9th ed.2009); Restatement (Second) of Torts § 892 (“Consent is a willingness in fact for conduct to occur.”). Further, at common law, consent may be withdrawn. Restatement (Second) of Torts § 892A, cmt. i (1979) (“[C]onsent is terminated when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct.”); . . . FN4 Consequently, based on the common law, we hold that the TCPA allows consumers to revoke their prior express consent.  [FN4. Two district courts have relied on the same common law understanding of consent in holding that the TCPA allows consumers to revoke their prior express consent. See Beal v. Wyndham Vacation Resorts, Inc., ––– F.Supp.2d ––––, No. 12–cv–274, 2013 WL 3870282, at *14–15 (W.D. Wis. June 20, 2013); Adamcik v. Credit Control Servs., Inc., 832 F.Supp.2d 744, 749–50 (W.D.Tex.2011) (citing Restatement (Second) of Torts § 892A cmt. i).]  Our decision is also in line with the purpose of the TCPA. The TCPA is a remedial statute that was passed to protect consumers from unwanted automated telephone calls. See S. Rep. 102–178, at 5 (1991), reprinted in 1991 U.S.C.C.A.N.1968, 1972; see also Satterfield, 569 F.3d at 954 (discussing TCPA’s purpose of curbing calls that are a nuisance and an invasion of privacy); SoundBite, 27 FCC Rcd. at 15391–92 ¶ 2 (discussing TCPA’s purpose of protecting consumers against unwanted contact from automated dialing systems). Because the TCPA is a remedial statute, it should be construed to benefit consumers. See Lesher v. Law Offices of Mitchell N. Kay, PC, 650 F.3d 993, 997 (3d Cir.2011) (construing the FDCPA broadly to effect its purpose). As a result, we should interpret in Gager’s favor any silence in the TCPA as to a revocation right. See Beal, 2013 WL 3870282, at *13–17 (holding that absence of a statutory revocation right in the TCPA does not preclude consumers from revoking prior express consent); Adamcik, 832 F.Supp.2d at 752 (noting that, if Congress wanted to limit a consumer’s right to revoke consent under the TCPA, it should have done so in the statute). Therefore, 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.  ¶  Finally, we cannot overlook the FCC’s decision in SoundBite.  The FCC’s analysis on the revocation right is admittedly sparse, but its conclusion is clear: consumers may revoke their prior express consent to be contacted by autodialing systems. SoundBite, 27 FCC Rcd. at 15397 ¶ 11. This conclusion is consistent with our common law analysis above. It is also consistent with the TCPA’s purpose. The FCC’s decision in SoundBite therefore serves as additional authority supporting our holding that a consumer may revoke her prior express consent.  In sum, we find that the TCPA provides consumers with the right to revoke their prior express consent to be contacted on cellular phones by autodialing systems.