District Court (Fla.) Suggests Revocation of TCPA Consent Must be in Writing, But Allows Complaint to Stand Anyway

In Brook v. Suncoast Schools, FCU, 2012 WL 6059199 (M.D.Fla. 2012), Judge Hernandez-Covington suggests that revocation of consent under the TCPA is ineffective unless given in writing, but allowed the Complaint to stand.

Suncoast further argues that, although the Cardosos have alleged that Suncoast “made multiple collection calls to [the Cardosos’] personal cell phone utilizing an automatic telephone dialing system after [the Cardosos] told [Suncoast that it] did not have permission to call [the Cardosos]” (Doc. # 1 at ¶ 36), this allegation is insufficient to state a claim under the TCPA because “revocation of a debtor’s consent to be contacted on a cellular number under TCPA must be made in writing and delivered to the creditor.” (Doc. # 5 at 11) (citing Osorio v. State Farm Bank, F .S.B., 859 F.Supp.2d 1326, 1331 (S.D.Fla.2012)). ¶  The Court acknowledges Suncoast’s argument that a verbal revocation would be insufficient to revoke “prior express consent” under the TCPA. However, at this juncture, this argument is inconsequential—especially considering that the Complaint does not expressly state the method by which the Cardosos “told” Suncoast that it lacked permission to call them. The Court must construe the facts alleged in the Complaint in the light most favorable to the Cardosos. Accordingly, because the Cardosos have alleged simply that Suncoast continued to make these collection calls after the Cardosos told Suncoast that it lacked permission to make any further calls (Doc. # 1 at ¶ 36), thus implying that Suncoast made the calls without the express consent of the called parties, the Cardosos have sufficiently alleged a violation of the TCPA, and the Court denies Suncoast’s motion to dismiss as to Count II.