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Applying Reyes: contractually controlling revocation of consent under the TCPA

Last week the District of Ohio, in Barton v. Credit One Financial, held that a consumer could not orally and unilaterally revoke consent under the Telephone Consumer Protection Act (TCPA) to be called once given contractually. Barton opened a credit card with Credit One via an online application through which he provided his cell phone number. By opening the account, Barton agreed to the terms of the cardholder agreement, which stated in relevant part that in the event Barton no longer wanted to be called he must provide written notice that included Barton’s name, mailing address, and the last four digits of his account number, as well as the phone number and/or email Barton wished Credit One to no longer contact. Based on the evidence and record presented at summary judgment the Court concluded that “while Mr. Barton may have orally asked Credit One’s agents to stop calling his telephone, the Cardholder Agreement” required him to provide the written notice outlined above. Further, evidence suggested that Credit One heeded its own proposed revocation system as once written notice was provided to Credit One by Barton’s attorney all communications ceased.

The Court went on to find that the Cardholder Agreement’s revocation clause was “valid and enforceable” and that “Mr. Barton c[ould not] unilaterally alter the terms of the agreement to claim that his oral revocation of consent was valid.” The Court then turned to the Second Circuit’s holding in Reyes v. Lincoln Auto. Fin. Servs.  (for more information on the Reyes decision, click here), stating that “[d]espite Mr. Barton’s reliance on distinguishable case law, the TCPA ‘does not permit a consumer who agrees to be contacted by telephone as part of a bargained-for transaction to unilaterally revoke that consent.” As such, the Court granted Credit One’s motion for summary judgment.

Barton is a great victory for businesses with contractual relationships with their customers that address consent to call. Barton takes Reyes out of the Second Circuit and into the Sixth, showing that its reasoning can resonate in new forums. Barton also adds further weight to the door opened in the ACA International, Inc. v. FCC opinion which made clear that the now partly defunct 2015 FCC Declaratory Ruling never addressed contractual limitations on revocation (for more information on the ACA International decision generally click here, for more information on how ACA International addressed revocation of consent, click here). Other courts may likewise walk through this open door.  For example, in Osorio v. State Farm Bank, F.S.B., the Eleventh Circuit stated that the plaintiffs in that case, “in the absence of any contractual restriction to the contrary, were free to orally revoke any consent previously given . . . .”

The fine balance businesses must strike is between the growing support for the Reyes contractual limitation doctrine and the FCC’s standard of permitting revocation to occur by any reasonable means (a standard upheld in ACA). All businesses subject to the TCPA should monitor this development closely.