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Consumer Rights under Attack in the Second District Court of Appeal

One of the strongest consumer protection statutes, the Telephone Consumer Protection Act (“TCPA”), has come under recent attack in the Second District Court of Appeal which covers New York, Connecticut, and Vermont. The TCPA makes it “unlawful… to use any telephone facsimile machine, computer, or other device to send, to a telephone, facsimile machine, an unsolicited advertisement….” 47 U.S.C. § 227(b)(1)(C). The TCPA generally prohibits making nonemergency, unsolicited calls advertising “property, goods, or services” using automatic dialing systems and prerecorded messages to telephones and cellular phones. Id. at § 227(a)(5). The Federal Communications Commission has interpreted the TCPA’s restriction to apply to both “voice calls and text calls to wireless numbers,” including text messages. In re Rules & Regulations Implementing the Telephone Consumer Protection Act, 18 F.C.C. Rcd. 14014, 14115 (July 3, 2003). A call or text is not unsolicited if the recipient provided the sender “prior express consent.” 47 U.S.C. § 227(b)(1)(A). TCPA litigation often times hinges on whether the consumer revoked any express consent to contact.

In Reyes v. Lincoln Automotive Financial Services, Case No. 16-2104 (2nd Cir. June 22, 2017), The U.S. Court of Appeals for the Second Circuit held that a consumer who agrees to be contacted via telephone call or text messages as bargained-for consideration in a contract cannot subsequently revoke his consent. This ruling prevents the consumer from being able to revoke their consent to being contacted and can lead to consumers being harassed on their cell phones via telephone calls and/or text messages and have no cause of action under the TCPA for the abuse.

In Reyes the Plaintiff-appellant Alberto Reyes, Jr. filed suit against Lincoln Automotive Financial Services (“Lincoln”) based on alleged violations of the TCPA. Reyes leased an automobile from Lincoln and eventually defaulted on his payments. As a condition of the lease agreement, Reyes consented to receive manual or automated telephone calls from Lincoln. Specifically, the operative lease agreement provides for the following:

You [Reyes] also expressly consent and agree to Lessor [Ford], Finance Company, Holder and their affiliates, agents and service providers may use written, electronic or verbal means to contact you. This consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems. You agree that Lessor, Finance Company, Holder and their affiliates, agents and service providers may use any email address or any telephone number you provide now or in the future, including a number for a cellular phone or other wireless device, regardless of whether you incur charges as a result.

The district court granted summary judgment for Lincoln based upon the reasoning that the evidence of revocation was insufficient and the TCPA does not permit revocation when consent is provided as consideration in a contract. The Second Court of Appeals looked towards neighboring circuits to analyze and address the consumers right to revoke consent to be contacted. The court noted that two circuit courts, the Third and our very own Eleventh Circuit have ruled that a party can revoke consent under the terms of the act. See Gager v. Dell Financial Services, 727 F.3d 265 (3d Cir. 2013); Osorio v. State Farm Bank F.S.B., 746 F.3d 1242 (11th Cir. 2014). In Gager and Osorio, the plaintiffs provided voluntary consent to be contacted by furnishing their telephone numbers in connection with loan and insurance applications. Reyes is distinguishable from these cases, in Reyes the court was faced with the issue of whether the TCPA permits a consumer to revoke his consent when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract.

The court noted that Reyes consent was not gratuitously provided. Rather, consent was included as an express provision of a contract to lease an automobile. The court held, that under such circumstances, “consent” is not revocable because one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.

What impact will this ruling have to consumers outside of the Second District Court of Appeal? As a former institutional bank/lender attorney, I can surmise what happened during the couple of days following the Reyes opinion. Several memorandums, write-ups, and teleconferences were conducted wherein the bank/lender attorneys have provided the strategy of making the consumer’s consent to be an essential term of the contract. Consumer contracts are being amended at a rapid pace to include that the consumer’s consent is a material term of the parties contract. Further, Lincoln’s argument that consent cannot be unilaterally revoked is going to spread like wild fire throughout the country and circuits. Consumer rights attorneys need to be cognizant of the Reyes opinion and be weary of filing any TCPA claims wherein consent is a material term of the parties contract.

If you have received any unwanted/unsolicited telephone calls or text messages then please contact Sweeney Law, P.A. immediately to protect your rights.

Sweeney Law, P.A. Regularly Represents Consumers that Have Received Unsolicited Text Messages and Telephone Calls

Brendan A. Sweeney, Esq., of Sweeney Law, P.A., The Florida Debt Warrior, regularly represents consumers that have been subjected to unwanted/unsolicited text messaged and telephone calls. Brendan A. Sweeney, Esq., has been recognized as a Florida Legal Elite Rising Star Attorney in Consumer Law in 2014, 2015, 2016 and 2017, and is a member of the National Association of Consumer Advocates. If you have been receiving unwanted telephone calls or text messages then please contact Sweeney Law, P.A. at 954.440.3993 immediately to protect your rights. www.sweeneylawpa.com

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