The Eleventh Circuit has issued a unanimous decision in Medley v. Dish Network, LLC, holding that the Telephone Consumer Protection Act (TCPA) does not permit consumers to unilaterally revoke their consent to receive automated calls or texts, if that consent is given in a bargained-for contract. The decision could have important implications for businesses that rely on consent to send consumers automated calls and texts.
As background, the TCPA—and the related regulations that the Federal Communications Commission (FCC) has promulgated—impose restrictions on the use of an automatic telephone dialing system to transmit calls or texts to mobile numbers without the recipient’s consent. Relevant here, if such calls or texts include marketing or advertising content, then under the FCC’s rules, a consumer’s prior express written consent must be secured before transmitting the call or message.
The dispute in Medley centered on whether the plaintiff could revoke her prior express written consent. The parties agreed that the plaintiff had entered into a contract with DISH to receive satellite television service, and that the service agreement included a provision authorizing DISH to contact the plaintiff using “an automated or predictive dialing system.” The plaintiff eventually sought to discharge her personal obligations under the service agreement in a bankruptcy proceeding and, through related letters from her lawyers, revoke her consent to receive automated calls. Her lawsuit alleged that DISH violated the TCPA by continuing to contact her after she had discharged her obligations and revoked her consent in this manner. The district court granted summary judgment in DISH’s favor, and the plaintiff appealed.
The Eleventh Circuit affirmed the district court’s ruling in favor of DISH, holding that the plaintiff could not unilaterally revoke her consent because it was given as part of a bargained-for contract. In reaching this conclusion, the Court adopted the Second Circuit’s reasoning in Reyes v. Lincoln Automobile Financial Services, 861 F.3d 51 (2nd Cir. 2017), which appears to be the only other Circuit court to have considered the question. Both the Eleventh Circuit and the Second Circuit found that this question was governed by the common-law principle that a party to a contract cannot unilaterally modify its terms.
The Eleventh Circuit distinguished a 2015 FCC order, which had held that the TCPA permits consumers to revoke their consent through any reasonable means. In the Court’s view, the FCC’s decision was based on “common law tort principles,” which were inapplicable in the context of a bargained-for contract. Because the FCC did not address contractual consent, the Court instead relied on the common law contract principles.
In a concurring opinion, one of the three Eleventh Circuit panel judges explained that although the plaintiff’s bankruptcy resulted in the discharge of her personal obligations (i.e., her debt) to DISH, it did not absolve her of related contractual obligations, which is why the prior express written consent provision in the contract with DISH could still be binding. The concurring opinion then pointed out that because that prior express written consent provision authorized only calls regarding the plaintiff’s account or to recover unpaid amounts owed to DISH, the scope of that consent was limited and may have been exceeded when DISH transmitted automated calls to her once her personal liability was discharged in bankruptcy. The concurring opinion noted that the parties did not raise this argument so the Court did not address it.