Sunday, December 20, 2020

FYI: 11th Cir Rejects TCPA "Revocation of Consent" Claim Because Borrower Re-Consented

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed entry of summary judgment in favor of a student loan servicer against claims raised by a customer for purported violations of the federal Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA").


In so ruling, the Eleventh Circuit held that, although the consumer revoked his prior consent to receive automatic telephone dialing system (ATDS) and prerecorded calls from the servicer, he subsequently "re-consented" to such calls by executing an online demographic form that contained his cell phone number and a clear, unambiguous consent provision.


A copy of the opinion is available at:  Link to Opinion


A now-attorney ("Consumer") took out student loans to attend law school.  Years after graduating, he consolidated his loans, and a servicer serviced the consolidated loan, while its affiliate performed default aversion services (collectively, the "Servicer").


The Consumer was a class member of a putative class action lawsuit filed against the Servicer in 2010 alleging that the Servicer and its affiliates violated the TCPA by calling class members' cell phones without consent between October 27, 2005, and September 14, 2010. 


The Consumer does not dispute that he was a class member and that he was sent an e-mail notice of the class action settlement agreement. By the terms of the settlement, class members who failed to submit revocation request forms were "deemed to have provided prior express consent" to receiving the Servicer's calls. The Consumer does not dispute that he did not submit a revocation request form.


In July 2012, two months before the class action settlement was approved, the Consumer faxed the Servicer's affiliate an Automatic (Electronic) Debit Authorization form that included his cell phone number.  The form expressly consented to allow the Servicer and its affiliates to call him concerning his student loan.


In June 2014, the Consumer called the Servicer to discuss a proposed settlement offer for his consolidated loan.  During the recorded call, he confirmed his cell phone number to the Servicer's representative and authorized the Servicer and its affiliates to contact him on his cell phone.  When the representative further asked if the Consumer could be contacted "using an auto-dialer or pre-recorded messages regarding your current or future accounts[?]" the Consumer responded "no." 


After this part of the conversation — while still on the phone with the Servicer representative — the Consumer visited the Servicer's website to fill out an automatic debit agreement to make payments on his delinquent student loan. When he logged on, a form titled "Edit Your Contact Information" (the "Demographic Form") popped up, that was auto-filled, in part, from information in the Servicer's records. 


The Consumer's cell phone number was not marked as a "required field" on the Demographic Form, and the auto-filled information could be deleted. The Demographic Form contained the language, in the same sized font as the rest of the form, above the "submit" button on the bottom of the form, that in providing a telephone number, the Consumer expressly authorized the Servicer and its affiliates to contact him at the number by "any means of communications" including calls to his cellular phone using an automated dialing device (ATDS), calls using prerecorded messages and/or SMS text messages, regarding his student loan. 


The Consumer does not dispute that this language was on the Demographic Form, and remembered completing the Demographic Form while still speaking to the Servicer's representative. After the phone call, the Consumer did not attempt to revoke his consent again for the Servicer or its affiliates to call him on his cell phone.


As the Consumer fell behind on his student loan payments, the Service began calling his cell phone.  The Consumer filed suit alleging that the Servicer violated the TCPA by calling his cell phone using an ATDS and prerecorded messages without his prior express consent. 


In ruling on the parties' respective motions for summary judgment the trial court rejected the Consumer's argument that he revoked any prior consent during the June 2014 call with the Servicer's representative, and determined (1) that the Consumer could not unilaterally revoke his consent to be called by the Servicer because his consent was given as consideration in a valid bargained-for contract (the class action settlement), and, alternatively (2) even if the Consumer could have revoke his consent to be called, he nonetheless reconsented when he submitted the Demographic Form during the June 2014 call. 


The Consumer appealed the order entering summary judgment in the Servicer's favor.


On appeal, the Eleventh Circuit was tasked with determining whether or not the Consumer gave or revoked his prior express consent to receive calls from the Servicer.  To interpret whether a party gave — or revoked — their "prior express consent" to receive calls under the TCPA, the court uses common law principles. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014). 


At common law, common law, even if a person does not intend to consent, their "words or conduct [that] are reasonably understood by another to be intended as consent . . . constitute apparent consent and are as effective as consent in fact." See RESTATEMENT (SECOND) OF TORTS § 892(2). And consent is revoked "when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct." Schweitzer v. Comenity Bank, 866 F.3d 1273, 1278 (11th Cir. 2017) (quoting RESTATEMENT (SECOND) OF TORTS § 892A cmt. i).


The Consumer's first argument on appeal was that the Servicer should have known that he did not intend to "change his mind" and "reconsent" so soon after revoking his consent on the phone with the Servicer's representative.  The Eleventh Circuit noted that under common law, consent is effective regardless of whether a party "intended" to consent if his words or conduct are "reasonably understood by another to be intended as consent." See RESTATEMENT (SECOND) OF TORTS § 892(2).


Thus, the Court concluded that it was reasonable for the Servicer to understand the Consumer's submission of the online demographic form that contained his cell phone number and a clear, unambiguous consent provision as his consent to the calls and rejected this argument. See Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1308 (11th Cir. 2015) (providing a phone number on a form, even without an express consent provision, constitutes consent under the TCPA).


Next, the Consumer argued that by submitting the Demographic Form right answering "no" to the Servicer representative's question, that the Servicer knew or should have known that he did not want to receive the calls, and the "knew or should have known" standard used by the Eleventh Circuit to determine whether consent was revoked should be applied.  See Schweitzer, 866 F.3d at 1278. 


Although the Court noted the close temporal proximity between the Consumer orally revoking prior consent and submitting the Demographic For, the Consumer offered no authority supports his argument that the Court should consider these actions as a "lumped together" interaction to stretch the revocation of consent standard to apply to his later reconsent to the Servicer.


The Consumer further rejected the Consumer's argument that the Demographic Form was ineffective because the form and its instructions were deceptive and misleading, as its review of the Demographic Form concluded that the consent provision was not "fine print," his cell phone number was not a "required field" and could have been removed prior to submission, and the only reason it was "auto-filled" was because the Consumer previously provided the Servicer with his number.


Lastly, the Eleventh Circuit rejected the Consumer's argument that the case presents genuine issues of material fact that preclude summary judgment and should go to a jury, finding that all facts material to determining whether the Consumer reconsented are undisputed.


Because the Eleventh Circuit agreed with the trial court that the Consumer reconsented to the Servicer's calls when he submitted the Demographic Form, it declined to address whether the class action settlement made the Consumer's initial consent unilaterally irrevocable.


Accordingly, the trial court's entry of summary judgment in the Servicer's favor was affirmed.




Ralph T. Wutscher
Maurice Wutscher LLP
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