Don’t Call Me, Maybe

By Dawn Causey, Thomas Pinder, Jonathan Thessin and Andrew Doersam

“Hey I just met you, and this is crazy, but here’s my number, so call me maybe?”

In the radio hit “Call Me Maybe,” Carly Rae Jepsen sings about giving her phone number to a stranger with the hope that he will call her, “maybe.” But is there a time limit governing how long the “lucky” recipient of Ms. Jepsen’s number has to call her? And is it possible, after a night of pensive reflection, for Ms. Jepsen to revoke her telephonic invitation and prohibit Mr. Lucky from calling?

While there may be no clear-cut legal guidelines governing this fictional situation, there are defined parameters surrounding when and how banks may phone their customers. After a consumer gives a bank her telephone number, the institution must evaluate when it is permitted to call the consumer under the Telephone Consumer Protection Act.

The Federal Communication Commission in 2015 stated that consumers have a right to revoke prior express consent to be contacted by phone using “any reasonable means.” But that order left many questions unanswered. For example, can a customer be contractually prohibited from revoking consent? And can a customer partially revoke consent? Two recent decisions in the Second and Eleventh Circuits highlight the lack of clarity regarding TCPA’s rules.

In Reyes v. Lincoln Automotive Financial Services, the Second Circuit ruled the TCPA prohibits consumers from revoking prior express consent when that consent has been provided in a binding contract. In the dispute, the plaintiff leased an automobile from Lincoln, and, as a condition of the lease agreement, consented to receive manual or automated telephone calls from Lincoln. When the plaintiff stopped making required payments, Lincoln contacted the plaintiff more than 500 times about the delinquent auto lease account. The plaintiff claimed that, in the midst of these calls, he requested that Lincoln cease contacting him.

The Second Circuit distinguished the FCC’s 2015 order and decisions from the Third and Eleventh Circuits. Those decisions held that consent given unilaterally, or that is otherwise not part of bargained-for consideration, can be revoked. However, in Reyes, consent was bargained-for consideration: the lease included a provision permitting Lincoln to contact the plaintiff, which the plaintiff assented to when finalizing the agreement.

So is Reyes a silver bullet to protect a bank against a claim of revocation of consent? Not so fast. Reyes is binding precedent only in the Second Circuit—Connecticut, Vermont and New York—and, as noted above, conflicts with decisions from two of its sister circuits and the FCC’s order. But Reyes suggests that, when faced with a claim that autodialed calls were made without consent, a caller will be better positioned if the customer previously provided consent as part of bargained-for consideration, instead of providing that consent unilaterally.

In Schweitzer v. Comenity Bank, the Eleventh Circuit ruled that the TCPA allows customers to partially revoke their consent to receive communications, noting that “in law, as in life, consent need not be an all-or-nothing proposition.”

After receiving collection calls, the plaintiff stated to a bank employee that “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 at work.” The plaintiff claimed that, after making that statement, the bank autodialed her more than 200 times in violation of the TCPA. The district court granted summary judgment in favor of the bank, ruling that the bank did not have reason to know that the plaintiff wanted no further calls because the plaintiff did not specify the parameters of the times she did not want to be called. However, the Eleventh Circuit reversed the decision, concluding that a plaintiff may partially revoke her consent to receive autodialed calls and there was an issue of material fact as to whether the plaintiff revoked her consent to be called during the morning and during the work day.

The appellate court acknowledged the “logistical and technical challenges” of divining a customer’s intent to revoke partial consent to receive autodialed calls—and the precise parameters of that revocation—but brushed those challenges aside. If adopted by other circuits, the Schweitzer court’s holding will be a headache for banks attempting to process an allegedly “partial” revocation of consent. For instance, a bank employee who receives a customer’s revocation would need to determine the extent to which the customer has revoked consent, even where the customer uses vague language to describe his revocation. Moreover, the bank’s systems would need to process that partial revocation—or not call the customer at all.

Taken together, courts appear willing to restrict a consumer’s ability to revoke consent. However, courts have not issued adequate rulings to create meaningful precedent. Thus, whether it’s the TCPA or matters of the heart, nothing is ever black or white.

Dawn Causey is general counsel at ABA, where Thomas Pinder is SVP for litigation, Andrew Doersam is a paralegal and Jonathan Thessin is senior counsel.