Under the TCPA, dialer calls to a cellular telephone number are permitted if made with the "prior express consent" of the person being called.
What happens when the person being called no longer wants to receive calls? May a consumer revoke consent that was previously given to call a cell phone? The TCPA itself is silent on whether a consumer may revoke prior express consent to call a cell number.
Several courts have grappled with this issue recently and the end result only muddied the waters. The conclusions from this line of cases have ranged from a finding that consent is revoked when the called party orally tells the caller to stop calling, to other cases that have found that revocation is only effective if made in writing, to the conclusion that, once given, a consumer does not have the right to revoke consent.
The leading case that assigned a writing requirement to attempts to revoke consent is Starkey v. Firstsource Advantage, LLC. In that case, a New York federal court ruled that a verbal request to cease further calls was insufficient to revoke valid consent that was previously given. The Starkey court noted: "To cease debt collection calls, written notice is required."
In Cunningham v. Credit Management, L.P., a federal court in Texas followed Starkey and decided that requiring written revocation is "consistent with the protections of the FDCPA." The FDCPA states that to be effective, a request to cease further calls must be in writing. Other courts in Florida and New York have followed Starkey and rejected arguments that a verbal revocation of consent is sufficient to revoke consent.
In Gutierrez v. Barclays Group, a federal district court in California disagreed with Starkey, finding that the Starkey court improperly applied the broad written cease communication requirement under the FDCPA into the context of a TCPA claim. The Court specifically noted that the plain language of the TCPA suggests that oral revocation is permissible and therefore, "absent language in the statute to the contrary," oral revocation is effective.
Similarly, in Adamick v. Credit Control Services, Inc., a federal court in Texas declined to follow Starkey and ruled that "oral revocation of consent is legally effective under the TCPA, even in the debt-collection context."
Adding more uncertainty, other courts have concluded that a consumer may not revoke consent in any form. In Gager v. Dell Financial Services, LLC, a federal court in Pennsylvania decided that a consumer may not revoke prior express consent because there is no provision in the TCPA that expressly grants this right. The Gager Court analyzed the possible revocation of consent in terms of a contract, and found that providing a way to communicate with the consumer was a part of the consideration obtained by the creditor in extending credit. By attempting to revoke the consent, the consumer was taking away the benefit of the creditor's bargain.
Similarly, in Saunders v. NCO Financial Systems, Inc., a federal district court in New York followed Gager¸ and concluded that consent could not be revoked under the TCPA because there is "nothing in the TCPA that gives a consumer two bites at the apple" to withdraw a number that was earlier given voluntarily.
Until some clarity is provided on this uncertain issue, the safest approach is to accept verbal or written revocations of consent. If a consumer advises you not to call a cell phone, do not call that cell number.
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