The TCPA is a hot legal issue as it can result in tens of thousands and even hundreds of thousands of dollars in damages for individual plaintiffs all related to computerized calls to cell phones. A big issue has been “Can you revoke consent to call your cell phone?”
The Eighth Circuit answered this “Yes” on September 26, 2014, in Brenner v. American Education Services (AES). Yes that is the AES that those with student loans often know too well….
The opinion is very short so we will include it all with our commentary below each quote.
Joshua Seth Brenner appeals the district court’s adverse grant of summary judgment in his action against American Education Services (AES), brought pursuant to the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. On de novo review, this court reverses and remands for further proceedings. See Butler v. Crittendon Cnty., Ark., 708 F.3d 1044, 1048-49 (8th Cir. 2013).
Brenner complained that AES violated the TCPA when it repeatedly called his cell phone number about his student loan debt, using an automatic telephone dialing system and prerecorded or artificial voice, without his consent, and continued to make such calls after he provided written notice to AES in July 2012, to stop calling him about his loan debt.
So in this opinion there is no dispute about whether an ATDS (automatic telephone dialing system) was used. Instead the issue centers on revoking consent.
The district court granted summary judgment to AES, finding that Brenner voluntarily provided his cell phone number to AES on numerous occasions, and expressly agreed to receive the type of calls made. This court agrees that Brenner gave express consent to receive calls from AES to his cell phone number by providing that number on multiple forbearance requests and he specifically authorized AES to use an automatic telephone dialing system to contact him at that number before the complained-of calls began. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1042 (9th Cir. 2012) (prior express consent is consent to call particular telephone number in connection with particular debt that is given before call in question is placed).
The timing of giving a cell phone number is still in dispute among courts — the majority rule appears to be the number must be provided at the time of the transaction — here the student loan application. This court, however, allows that numbers provided before the calls begin with specific authorization to use an auto dialer counts as prior express consent also.
The district court did not address Brenner’s argument that he revoked his consent in July 2012. It is undisputed that AES continued to make calls to Brenner’s cell phone after this date.
There have been some courts, primarily in the Western District of New York, that feel once consent has been given, it is either impossible or very difficult to take it away.
Thus, if Brenner effectively revoked his consent, summary judgment was not proper. While this court has not yet addressed the issue of revocation, two other circuit courts have concluded that prior consent to call one’s cell phone may be revoked under the TCPA. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255-56 (11th Cir. 2014); Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270-72 (3d Cir. 2013).
To my knowledge NO federal appellate court has taken the odd (well actually absurd) position that consent cannot be revoked. In what other areas of the law can you NEVER revoke consent — just not a well thought out position. So Brenner recognizes this obvious truth that consent can be revoked.
The grant of summary judgment for AES is vacated and the case is remanded to the district court to consider whether Brenner’s evidence supporting his contention that he revoked consent was sufficient to preclude summary judgment for AES, and for further proceedings as appropriate.
It will be interesting to see what the district court (trial court) rules is sufficient evidence of revoking. Some courts hold verbal is sufficient and some say written is required. In Brenner it looks like he did revoke it in writing but this is an issue to keep an eye on.
Take away lesson is consent can be revoked. We recommend that it be done in writing, by certified mail, and that language similar to this be used:
“Don’t ever call my cell phone number of ______________. If you think I ever gave consent for this number to be called, I’m revoking it now.”