Reed Smith Client Alerts

In Linda Medley v. Dish Network, No. 18-13841, 2020 BL 163644 (11th Cir., May 1, 2020), the 11th U.S. Circuit Court of Appeals followed the 2nd Circuit’s reasoning in Reyes v. Lincoln Auto. Fin. Servs., 861. F.3d 51, 56 (2nd Cir. 2017) and held that the Telephone Consumer Protection Act (TCPA) does not allow unilateral revocation of consent given in a bargained-for contract.

Authors: Abraham J. Colman Travis A. Sabalewski Brandon T. White

Factual Background

Satellite television customer Linda Medley alleged, among other things, that DISH violated the TCPA by contacting her with an automated telephone dialing system (ATDS) after she revoked consent to receive such calls. Medley had entered into a Digital Home Advantage Plan (Agreement) with DISH to receive television services in exchange for payments. As part of the Agreement, Medley provided her cellular telephone number and expressly authorized DISH “to contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system.”

Subsequently, Medley filed for Chapter 7 bankruptcy protection and the bankruptcy court discharged her DISH debt. Over a month after the discharge, DISH sent Medley an email to collect fees associated with a DISH Pause program that DISH contended were not discharged in the bankruptcy. In response, Medley’s counsel sent DISH a facsimile identifying their firm as her counsel and Medley’s account information. Importantly, the facsimile also noted, “[t]o the extent any such prior express consent existed, if any, to call [Medley] using an ATDS, such consent is hereby forever revoked consistent with the Florida and federal law.” DISH made six automated calls to Medley’s cell phone after receiving the fax.

Review

Medley sued in the Middle District of Florida under the TCPA, alleging that the fax sent to DISH revoked consent for DISH to place automated calls to her cell phone. The district court disagreed and granted summary judgement to DISH, finding that the TCPA does not authorize unilateral revocation of consent to receive automated calls when such consent is given in a bargained-for contractual provision.