LOCKED IN: 11th Circuit Court of Appeals Holds Contractual Consent for Robocalls Cannot be Revoked–but TCPAWorld Remains Split on the Issue

It has been nearly three years since the Second Circuit Court of Appeals decided Reyes v. Lincoln Automotive Financial Services, 861 F. 3d 51(2nd Cir. 2017)–a neat and tidy ruling explaining why contractual TCPA consent is not unilaterally revocable at the option of the called party–and TCPAWorld finally has its second Court of Appeal decision on this important issue. 

The Eleventh Circuit Court of Appeal held on Friday that a consumer who provides consent to receive autodialed calls as part of a written contract cannot revoke that consent unilaterally.  Medley v. Dish Network, LLC, No. 18-13841 (11th Cir. May 1, 2020).  The Eleventh Circuit affirmed the lower courts ruling on the subject concluding: “Like the district court, we agree with the Second Circuit.” 

The ruling is critical for callers that commonly insert autodialer consent provisions in consumer agreements and terms of use documents. As so-called “revocation” lawsuits continue to account for a huge percentage of TCPA suits, the ability to enforce these contractual provisions over consumer claims that they “revoked” their consent is hugely valuable–affording a defense in the bulk of TCPA suits currently being filed.

Important though the issue is, the Medley opinion is straightforward. The ruling boils down to basic contract law.  Under the common law of contract, the bargain of the parties cannot be modified unilaterally by either one of them after the deal is made–that is, after all, what makes a contract a contract. And there is nothing magical about a TCPA consent provision–it is a contract term as irrevocable as any other.

Despite the relative simplicity of this analysis, courts have been slow to apply this basic doctrine in the context of TCPA consent. The primary concern is/was that the TCPA is a consumer-protection statute and, the argument goes, consumers should not be railroaded into waiving its protections in consumer contracts. Yet the TCPA does not purport to re-write any of the laws of contract, and was passed against the existing framework of common law, which includes the law of contract, as the Eleventh Circuit ruling recognizes. 

The Plaintiff in Medley also argued that the Federal Communications Commission’s order recognizing that consumer consent can be revoked in 2015 created an unwaivable right to revoke consent “using any reasonable method including orally or in writing.” However, the Eleventh Circuit did not buy this argument and joined the Second Circuit’s opinion in Reyes in holding that the FCC did not express a desire to–and did not– purport to re-write basic contract law in recognizing a consumer’s right to revoke consent; rather the FCC’s ruling was simply limited to circumstances where the consumer had not provided consent in a contract.

While Medley is straightforward and undoubtedly correct, the ruling is actually a departure from the weight of authority in the Eleventh Circuit footprint where district courts had been quick to allow consumers to revoke consent, even in the form of a contract term.  Indeed, many courts in Florida and Georgia had previously recognized that callers could not “lock in” contractual consent so the Medley ruling may really prove impactful in these states.  

Zooming out to the national picture, Medley, affords a bit of clarity to the TCPA landscape on the revocability of contractual consent. To date, zero court of appeals decisions have held directly that contractual consent can be revoked–strongly suggesting that the Reyes/Medley position is the new majority position. Nonetheless, a patchwork of district court opinions across the nation continues to stymie the predictable application of consumer consent provisions. Indeed, district court opinions in the Ninth and Seventh Circuit have outright refused to enforce contractual consent provisions recognizing language from court of appeal decisions in those jurisdictions suggesting that consent is revocable.  

As such, contractual TCPA consent cannot be revoked where the Defendant is sued in Connecticut, New York, and Vermont, Alabama, Florida and Georgia. On the other hand, that same caller might not have a defense under that same contract in Illinois, California or Washington state.

So it goes.

Editor’s Note: I largely updated this article at 4:37 pm pacific time on May 4, 2020.

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