District Court (Conn.) Grants Reyes Motion Against TCPA Plaintiff

The Second Circuit has held 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.” See Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), as amended (Aug. 21, 2017). It is undisputed that plaintiff consented to receiving ATDS calls when she signed her promissory notes. This fact is dispositive under Reyes.  Plaintiff argues that extrinsic evidence regarding the meaning of the consent clause should be considered because the clause is ambiguous. In general, “[w]hen only one interpretation of a contract is possible, the court need not look outside the four corners of the contract.” Parisi v. Parisi, 315 Conn. 370, 383, 107 A.3d 920, 929 (2015) (quotation omitted). “Extrinsic evidence is always admissible, however, to explain an ambiguity appearing in the instrument.” Id.  Plaintiff claims that the consent clause is ambiguous because it can be interpreted to provide only “initial” consent to receive ATDS calls. I disagree. The clause includes no temporal limitations and contemplates ATDS calls in the future: “You may contact me at any telephone number I provide in this application or I provide in the future.”  Plaintiff also argues that contractually-provided consent is irrevocable only when “the parties expressly agree by contract that consent is irrevocable.” This argument fails in light of the facts and holding of Reyes.³ Like the notes at issue here, the contract at issue in Reyes was silent on revocation.⁴ Even so, the Second Circuit determined that the plaintiff’s bargained-for consent “bec[a]me irrevocable” when it was granted in the contract. See Reyes, 861 F.3d at 53–54.   Plaintiff submits that the Federal Communications Commission “envisioned a ‘prior express consent’ term that was merely an initial grant of consent and not an irrevocable grant of consent to call for all time.” She cites a 2015 ruling of the FCC that prior express consent may be revoked. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961 (2015).  Plaintiff’s reliance on the FCC’s ruling is unavailing. In Reyes, the Court stated that the ruling addressed only the “narrow” question whether, under the TCPA, “a consumer who has freely and unilaterally given his or her informed consent to be contacted can later revoke that consent.” 861 F.3d at 56 (citing 2015 FCC Ruling). Here, as in Reyes, the issue is “whether the TCPA also permits a consumer to unilaterally revoke his or her consent to be contacted by telephone when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract.” Id. Reyes answered this question in the negative.