Third Circuit Holds That Consumers Can Withdraw Consent

In a case of first impression in the courts of appeal, the Third Circuit recently expanded the rights of consumers under the TCPA, holding that consumers may revoke their consent to be called on their wireless phones and that there is no time limitation on when they may do so. Gager v. Dell Financial Services, LLC, — F.3d -, 2013 WL 4463305 (3d Cir. Aug. 22, 2013).

The TCPA is silent on whether consumers have the right to revoke consent. In a 1992 ruling, the FCC stated that autodialed calls to landline and wireless phones are lawful so long as the consumer has granted "permission to be called at the number which they have given, absent instructions to the contrary." In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769, ¶ 31 (Oct. 16. 1992). This ruling, however, did not explain whether such "instructions to the contrary" could be delivered after a consumer has expressly granted consent. Before the Third Circuit's decision in Gager, no circuit court had addressed the issue of consent revocation, and various district court decisions were in conflict. See, e.g. and compare, Saunders v. NCO Fin. Sys. Inc., 910 F. Supp. 2d 464, 468-69 (E.D.N.Y. 2012) (holding that consent cannot be revoked under the TCPA); Kenny v. Mercantile Adjustment Bureau, LLC, No. 10-1010, 2013 WL 1855782 (W.D.N.Y. May 1, 2013) (same), with Gutierrez v. Barclays Group, No. 10-CV- 1012 DMS (BGS), 2011 U.S. Dist. LEXIS 12546, at *11-12 (S.D. Cal. Feb. 9, 2011) (consent can be revoked orally).

In 2007, Plaintiff Ashley Gager applied for a line of credit from Defendant Dell Financial Services, LLC ("DFS") to purchase computer equipment. In the space where the application required Gager to list her home phone number, Gager listed her wireless phone number and did not alert DFS that it was a wireless number and not a wire line home phone number. DFS granted the line of credit to Gager, who then used it to finance the purchase of computer equipment. Gager later defaulted on the debt, and DFS allegedly began using an ATDS to call the number that she had listed on her credit application seeking to collect the debt. In December 2010, Gager sent DFS a letter asking it to stop calling her number, but did not state that the number was associated with a wireless phone. Gager alleged that, after receiving her letter, DFS continued to use an ATDS to call her wireless phone more than 40 times over a three-week period.

Gager...