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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.