Eleventh Circuit Rules that TCPA Consent in a Contract Cannot be Revoked

On Friday, April 30, 2020, the Eleventh Circuit Court of Appeals issued a significant opinion regarding the Telephone Consumer Protection Act (TCPA). In the opinion, the court ruled that consumers who consented to receive robocalls through a binding contract cannot later revoke that consent. The court’s decision was issued in the case of Linda Medley v. Dish Network, LLC. Case #18-13841.

The ruling is a significant win for creditors attempting to contact consumers on delinquent debt. While the Eleventh Circuit ruling is only applicable in the Eleventh Circuit (Florida, Georgia, and Alabama), the decision is consistent with a similar decision issued out of the Second Circuit three years ago. While the Supreme Court could ultimately overrule this decision, the decision now protects creditors whose contract provides consent to contact through an automatic telephone dialing system (autodialer) or prerecorded voice message.

The court explicitly rejected the FCC’s interpretation that the consumer can withdraw consent, notwithstanding contractual language to the contrary. The Eleventh Circuit decision relied on fundamental contract law that holds one party to a contract cannot unilaterally cancel a contractual provision.

What does this decision mean for creditors? It means that if you have a proper consent in your loan agreement, you will have a valid defense to a TCPA claim in Florida, Georgia, or Alabama. We recommend you review your contractual language to make sure that the consent language does not grant consumers the right to withdraw consent. If your loan documents give the consumer the right to withdraw consent, then this case would not be applicable if the consumer can show that he or she withdrew consent. In light of the original FCC interpretation, many consent provisions put in loan agreements preserved a right to the consumer to withdraw consent. In light of this Court ruling, you may wish to consider further changes to your consent language.

Should you need help in reviewing your consent language or wish to make changes to your consent language in light of this decision, please do not hesitate to contact a lawyer at SVL.

Sorenson Van Leuven is hosting its fourth virtual roundtable meeting on Collections, Loss Mitigation, and COVID-19. The meeting is set for Thursday, May 7th, at 3:00 p.m. eastern time. We have allotted 60 minutes for this meeting. This meeting will include a presentation of helpful and timely information and a time for questions and answers.

The meeting will be held via Zoom, and we encourage you to log in using a computer, tablet, or smartphone so that we can see each other and participate in more of a “face to face” meeting. We ask that you RSVP for this event by emailing Cathi at cathib@svllaw.com no later than Wednesday, May 6th, at 12:00 p.m. Upon receiving your RSVP, Cathi will send you an email with the password for entering the zoom meeting. You will not get the password to join the meeting unless you RSVP.

This meeting will be recorded and those who RSVP will get access to a copy of the recording.

If you plan to attend, remember to mark your calendar and copy the link below into your calendar for future reference. We look forward to your participation.

Check out our video interview on How Credit Unions should handle business during the Covid 19 Pandemic and how they should plan for the future.

Sorenson Van Leuven is hosting its third virtual roundtable meeting on Collections, Loss Mitigation, and COVID-19. The meeting is set for Tuesday, April 21st, at 2:00 p.m. eastern time. We have allotted 90 minutes for this meeting. This meeting will include a presentation of helpful and timely information and a time for questions and answers.

The meeting will be held via Zoom, and we encourage you to log in using a computer, tablet, or smartphone so that we can see each other and participate in more of a “face to face” meeting. We ask that you RSVP for this event by emailing Whitney at whitneyw@svllaw.com no later than Monday April 20th, at 12:00 p.m. Upon receiving your RSVP, Whitney will send you an email with the password for entering the zoom meeting.

If you plan to attend, remember to mark your calendar and copy the link below into your calendar for future reference. We look forward to your participation.