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.
On appeal, the 11th Circuit evaluated whether the TCPA allows unilateral revocation of consent given in a bargained-for contract, and agreed with the district court that it does not. In doing so, the 11th Circuit followed the 2nd Circuit’s reasoning in Reyes v. Lincoln Auto. Fin. Servs., 861. F.3d 51, 56 (2nd Cir. 2017). In Reyes, the plaintiff expressly consented to receive automated telephone calls to collect a debt as part of a bilateral agreement and expressly revoked his consent to receive such calls. The Second Circuit relied on common law contract rules defining revocation of consent in legally-binding agreements to affirm summary judgment for the defendant. Under such rules, although consent given voluntarily and gratuitously is revocable under common law, consent given as a mutually agreed-upon term in a legally binding contract is not. In accord with those rules, the 11th Circuit had previously expressed that it was black letter law that one party to an agreement cannot, without the other party’s consent, unilaterally modify an agreement once it had been executed. See Kuhne v. Fla. Dep’t of Corrs., 745 F.3d 1091, 1096 (11th Cir. 2014).
Even further, the 11th Circuit expressed that its holding was not at odds with its decision in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), because, unlike Medley’s factual scenario, Osorio addressed revocation of consent when given gratuitously in a credit application. Additionally, the 11th Circuit expressed that its holding was not at odds with FCC guidance because the 2015 FCC Ruling did not address contractual consent.
Next Steps
Looking ahead, Medley should be used to combat a plaintiff’s TCPA claim(s) where a plaintiff attempts to unilateral revocation of consent given in a bargained-for contract. However, when a plaintiff’s debt has been discharged in bankruptcy, it is possible that calls to the plaintiff’s cell phone may not be permitted even after Medley. One judge in Medley opinioned in concurrence that the results may have been different if Medley argued that the discharge of her debt meant that DISH was not permitted to make calls to her cell phone under the consent provision in a bargained-for agreement. If Medley had made that argument, it is unclear whether a good faith defense, or some defense, would be successful against a plaintiff’s TCPA claim.
Client Alert 2020-292
