Florida Business Litigation & Insurance Coverage Law Blog

Thursday, May 22, 2014

Consent to Be Called Can Be Revoked Orally Under the TCPA

Verbal "Stop Calling" Notices Are Sufficient 

A recent case came down in the Eleventh Circuit Court of Appeals that has a major effect on consumers, creditors, and debt collectors regarding unwanted phone calls to consumers.  In Osorio v. State Farm, F.S.B., No. 13-10951 (11th Cir. March 28, 2014), the Court made a number of important rulings that relate to the TCPA.  

First and foremost, the Court noted that the Telephone Consumer Protection Act ("TCPA") allows a consumer to orally revoke any "prior express consent" for the creditor to call the consumer.  As context, telephone calls to a consumer are not a violation of the TCPA if the consumer has given the creditor express consent to call them.  In Osorio, the consumer told the creditor to "stop calling."  The creditor argued that this oral revocation was not sufficient to revoke prior written consent to call. The district court agreed with the creditor that oral revocation was not sufficient. 

However, the Eleventh Circuit disagreed.  It held that the TCPA not only allows a consumer to revoke consent in writing, but it also is silent on certain provisions that other statutes have regarding the specifics of how revocation of consent must be performed.  Thus, the Court held, that oral or verbal revocation of consent under the TCPA is sufficient.  Accordingly, the consumer's request for the creditor to "stop calling" was sufficient to effectively revoke any prior written consent.  

No Charge Required for the Call to Be Considered a Violation

One other important holding from this case was the Court's ruling that the TCPA did not require a consumer to actually be "charged" for a call to be a violation of the TCPA.  Thus, unanswered calls from creditors and calls to a consumer with an "unlimited minutes" plan were still violations of the TCPA.  

Only the "Called Party" can Consent to the Calls

The last point to take away from Osorio is that the "called party" must be the person who gave consent for the call.  Thus, if a creditor calls a debtor's relative, this is only proper if the relative gave express consent for the creditor to call.  The Court did not get to fully rule on the issue of whether an agent can give express consent for the other based on their relationship, but held that this was a factual determination on a case-by-case basis.  In other words, in some circumstances, a consumer may be have the ability to consent to calls on behalf of another party.  Determining whether this is true is different in every scenario and is based on principles of agency law.  

In rendering its holdings in Osorio, the Court exercised a thorough review of the language of the statute and how each clause was written.  In addition to being correct on the minute technicalities of the TCPA language, the Court's ruling was also practically correct.  If telephone calls are the primary means of a creditor's communications, then what the parties actually say during the calls should be afforded weight.  If a consumer verbally requests a creditor to stop calling, then that request should be honored.  It would be superfluous to also make the consumer put the request in writing.  

Likewise, creditors who violate the TCPA should not be given a "pass" on violations for certain calls simply because a consumer did not answer or was not otherwise charged for the call.  The crux of the TCPA is harassing conduct to a consumer.  Thus, if a creditor is violating the TCPA, its violations should not be penalized less because a consumer did not answer the call or had unlimited minutes.

In sum, the Eleventh Circuit nailed the ruling in Osorio.  It substantiated what many attorneys such as myself and others have been arguing for quite sometime.  If you tell a creditor to stop calling, that is exactly what they should do.  

The Davis Law Firm is located in Jacksonville, Florida and serves clients throughout the states of Florida and Georgia, including Jacksonville, Miami, Pensacola, Orlando, Tampa, St. Petersburg, St. Augustine, Fort Myers, Daytona Beach, Panama City, Destin, Melbourne, Fort Lauderdale, West Palm Beach, Tallahassee, the Florida Keys, and everywhere in between.

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