Unusually Strict TCPA Construction Aids Defense: Court Holds ATDS Use Requires Random Number Generation—Suggests Consent Cannot be Revoked After All

It is easy to forget here in TCPAWorld, but not every Circuit Court of Appeal has yet held that consent is revocable.

Indeed, not long ago there was a raging nationwide debate as to whether statutory TCPA consent can be revoked and—if so–whether it could be revoked orally or just in writing. While that issue was seemingly resolved by the FCC’s TCPA Omnibus ruling, a new opinion out of the District of Connecticut appears to have re-opened this long quiet TCPA front.

The ruling is all-the-more-remarkable because the Court also addresses and rejects the long-dormant argument that consent must be provided at the time of a transaction to be valid for TCPA purposes. And the Court still makes time to weigh in on the most timeless of all debates—whether an automated telephone dialing system requires a random or sequential number generator (Spoiler alert: it does.)

Lots to unpackage here, so let’s dive in.

In Zanard v. Bank of Am. & Specialized Loan Servicing, No. 3:15-cv-1208 (MPS), 2019 U.S. Dist. LEXIS 72425 (D. Conn. April 30, 2019) the Court considered a summary judgment motion brought by a Defendant contending that it had consent to place the challenged collection calls using a prerecorded voice. In addressing the issue, the Court first determined that the Plaintiff had consented to receive collection calls when he provided his phone number repeatedly on loss mitigation documents. This is true although: i) loss mitigation is not, strictly speaking, collections work; and ii) the phone number was not provided at the time the account was created in the first place.

While the Court did not consider the loss mitigation angle it does spend a long long time discussing the long long dead argument that a number must be provided at the outset of a credit relationship to constitute valid consent–this is, after all, the argument I saved TCPAWorld from a few years back. After it (finally) satisfies itself that consent exists it spends remarkably little time addressing the Plaintiff’s contention that he revoked that consent. And what the court ultimately suggests is stunning—the TCPA does not permit consent to be revoked at all.


Notice, this is not a Reyes v. Lincoln Financial Services, issue. This is not the idea that contractual consent is irrevocable. No. This is the idea that TCPA consent itself can never be revoked because the statute does not specifically state that such consent is revocable. Here’s what the Court says:

There is no provision in the TCPA, unlike the FDCPA, see 15 U.S.C. § 1692c(c), that allows withdrawal of a voluntarily-given, prior express consent to call a cell phone number.

Well how about that? Maybe consent is not revocable after all. Just joking. Seriously, don’t try this at home.

In weighing a summary judgment motion brought by a second defendant in the case the Court also goes on to conclude that an ATDS is not an ATDS unless it can randomly or sequentially generate numbers—citing ACA Int’l for the proposition! In the Court’s view, because Plaintiff failed to demonstrate that the dialer used to call her had the capacity “to store or produce telephone numbers. . . using a random or sequential number generator” summary judgment was properly granted to the Defendant.

To say that Zanard is an outlier would be a bit of an understatement. Although the Court’s ruling that random or sequential number generation is necessary to state a claim is well within the majority norm, citing solely to ACA Int’l for that proposition is a bit… odd. ACA Int’l, of course, did not issue a ruling as to the proper ATDS formulation, it simply invalidated the FCC’s previous ATDS work–all of it–and sent the issue back to the Commission for further consideration.

The really interesting piece of Zanard, of course, is this idea that consent cannot be revoked. This decision feels like it was written in 2013, yet here it is published five years later. It just goes to show that old arguments never die in TCPAWorld they just go dormant. Happy weekend TCPAWorld.



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