In Schweitzer v. Comenity Bank, the 11th Circuit concluded the TCPA permits a consumer to partially revoke her consent to be called with an automatic telephone dialing system (ATDS).
In Schweitzer, initial consent was not at issue. The parties agreed plaintiff provided initial consent to call her cell phone with an ATDS by providing her cell phone number to Comenity on her credit card application. The parties disagreed, however, regarding whether plaintiff's statements during a telephone call with Comenity were sufficient to revoke consent under the TCPA. During the call at issue, plaintiff asked a Comenity employee to not call her "in the morning and during the work day." The 11th Circuit rejected Comenity's argument that revocation is only effective when it is an "unequivocal request for no further communications." Instead, the court extended its reasoning in Osario v. State Farm Bank, F.S.B., 746 F. 3d 1242, 1255 (11th Cir. 2014) (applying common law consent principles and holding, theTCPA allows a consumer to orally revoke her consent) to partial revocation.
The court reasoned, common law consent principles permit a consumer to provide limited, i.e. restricted, consent for the receipt of automated calls. Thus, "unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA." Ultimately, the court remanded the case to trial to determine if plaintiff's statements to Comenity were sufficient to partially revoke consent.
Practically speaking, this decision calls into question how collectors should treat a consumer's attempted partial revocation of consent. At least in the 11th Circuit, statements like "don't call me so much" and "don't call me on Sundays while I'm at church" may be considered partial revocation of consent by the fact-finder leaving the conundrum of determining how to comply with such individualized requests.► Back to News & Resources