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Revoking Contractual Consent is Different: D.C. Circuit Unwinds 2015 FCC TCPA Ruling

For our overview of the full D.C. Circuit opinion in ACA International v. FCC, click here. Here, we address one significant component of the decision: the D.C. Circuit’s confirmation that consumers may revoke consent to call by any reasonable means but with the qualification that parties may be able to contract around certain TCPA prohibitions. As background, the Court began by stating “[i]t is undisputed that consumers who have consented to receiving calls otherwise forbidden by the TCPA are entitled to revoke their consent. . . . The statute, however, does not elaborate on the processes by which consumer may validly do so.”

In the 2015 ruling, certain callers specifically petitioned the FCC “to clarify that callers can unilaterally prescribe the exclusive means for consumer to revoke their consent.” The Commission “explicitly denied that request. Allowing ‘callers to designate the exclusive means of revocation,’ the Commission believed could ‘materially impair’ the ‘right of revocation.’”  Rather, the Commission adopted a totality of the circumstances approach, “conclud[ing] that ‘a called party may revoke consent at any time and through any reasonable means’—orally or in writing—‘that clearly expresses a desire not to receive further messages.” In attempting to give contours to an otherwise open-ended inquiry, the Commission found that “[o]ne relevant factor is ‘whether the caller could have implemented mechanisms to effectuate a requested revocation without incurring undue burdens.’ Another consideration is ‘whether the consumer had a reasonable expectation that he or she could effectively communicate his or request . . . in that circumstance.”

Ultimately, the Court determined that the Commission’s “any reasonable means” standard passed muster. However, in doing so, the Court provided weight to the growing case law pushing back against revocation claims.

First, the Court noted that “callers will have every incentive to avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods. If recipients are afforded such options, any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might well be seen as unreasonable. The selection of an unconventional method of seeking revocation might also betray the absence of any ‘reasonable expectation’ by the consumer that she could ‘effectively communicate’ a revocation request in the chosen fashion.” This language—though not citing to any specific case law—assuredly nods to cases like Epps v. The Gap, Inc., where the court denied revocation claims by a plaintiff who, rather than texting ‘Stop’ as she was clearly prompted to do, gave long-winded legalese tailor-made for a TCPA complaint.

The takeaway is that while callers cannot force consumers to revoke in predetermined ways, they can make available clear and easy means of revoking consent. If done properly, callers can guide—without requiring—plaintiffs so clearly to revoke in a given manner that it’s simply unreasonable for a consumer to believe that other means of revocation could be effective. In no way does this alleviate the need to train employees and to monitor all channels of communication with the public. But, it does give ammunition against professional plaintiffs and the unreasonable.

Second, the Court noted that “[t]he Commission correctly concedes . . . that the ruling ‘did not address whether contracting parties can select a particular revocation procedure by mutual agreement.” And while “[t]he ruling precludes unilateral imposition of revocation rules by callers[,] it does not address revocation rules mutually adopted by contracting parties. Nothing in the Commission’s order thus should be understood to speak to parties’ ability to agree upon revocation procedures.” This means that terms and conditions in a signed writing may yet permit callers to dictate in what manner called parties revoke. This also means that the promise of Reyes v. Lincoln Auto. Fin. Servs. stays alive. Reyes found that contractual consent, once given, cannot be unilaterally revoked. Though few decisions exist citing Reyes (for any proposition), its reasoning is arguably bolstered by the D.C. Circuit’s opinion, which (i) states that contractually dictating means of revocation is a live issue, and (ii) specifically notes that the 2015 ruling has no bearing on the issue of contractual consent.

In short, it remains the law that consumers may revoke consent by any reasonable means. However, that rule speaks only to method of communication. Such revocation must be clear and it must be done such that it’s reasonable to expect that a revocation occurred. Further, the argument that parties may contract around certain TCPA rules remains alive.