Earlier this month, in Schweitzer v. Comenity Bank, the Eleventh Circuit held that a consumer can partially revoke consent to be called under the Telephone Consumer Protection Act (TCPA), This decision will only further complicate the already complex and treacherous net of liability cast by that statute.
Emily Schweitzer listed her cell phone number when applying for a credit card with Comenity Bank and subsequently failed to make timely payments. In attempting to collect on the outstanding balance, Comenity allegedly made hundreds of autodialed calls to Schweitzer’s cell phone. Key here, Schweitzer answered at least two of the calls. The first time she allegedly stated “And, if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.” During the second call, Schweitzer asked “Can you just please stop calling? I’d appreciate that, thank you very much.” According to the lawsuit, Comenity did not stop calling after the first request but did after the second.
Schweitzer sued, arguing revocation of consent, but the trial court sided with Comenity by finding the first attempt to revoke insufficient. The Eleventh Circuit disagreed. In holding partial revocation is effective under the TCPA, the court noted that common law permits limitations on consent (as do other areas of law like consenting to some but not all searches). According to the court, if a customer could provide limited consent, it follows that a customer could make a limited revocation. The remainder of the decision addressed the partial revocation from the first call Schweitzer answered, ultimately determining that a reasonable juror could conclude that it operated as an effective revocation of consent to be called, at least during certain times.
Outside of the holding itself, business should take away a number of lessons from Schweitzer. First, the need for responsive feedback loops capturing the revocation of consent and any limitations on such revocation cannot be overstated. Revocation is not binary, and businesses must be sure to capture qualitative data on revocation. Importantly the Schweitzer court acknowledged the “logistical and technical challenges” its opinion “may” create, but suggested acceptable alternatives could be “sophisticated software” or ceasing all calls to customers who partially revoke. Second, the Eleventh Circuit kept alive the possibility that contractual consent, once given, may not be revoked unilaterally. Though Schweitzer did not cite to the Second Circuit’s landmark Reyes v. Lincoln Automotive Financial Services decision regarding revocation of contractual consent, it did note that “absent a contractual restriction to the contrary, the TCPA allows a consumer to orally revoke her consent to receive automated calls.” Third, consent already provides hurdles to class certification by creating an individualized question for called parties. Permitting partial revocation of consent opens up and even more nuanced inquiry into whether consent existed for each putative class