Revocation of Consent Under the Telephone Consumer Protection Act: Soulliere v. CFI Resorts

In a recent jury trial that was pending in the Middle District of Florida, Soulliere v. CFI Resorts Management, Inc., Greenspoon Marder, P.A. attorneys Richard W. Epstein and Jeffrey A. Backman argued that telling a debt collector “please don’t call my cell phone” did not effectively revoke consent pursuant to the Telephone Consumer Protection Act (“TCPA”). The jury agreed and a defense verdict was entered by the Court.

In response to the public’s general annoyance with receipt of telephone calls using automatic telephone dialing systems, the TCPA was implemented to make it illegal for a company to call a customer’s cellular telephone using an automatic telephone dialing system without prior express consent or once prior express consent is revoked. Since such time, the application of the TCPA has been consistently broadened, making it increasingly difficult for companies to connect with its customer base.

On July 10, 2015, the FCC released its Omnibus Declaratory Ruling and Order (“FCC Order," embedded below) that reaffirmed its position that the TCPA should be construed broadly and in favor of consumers to stop unwanted calls.

In doing so, the FCC continued the slow, yet consistent expansion of the definition of an automatic telephone dialing system and the restriction of what amounts to consent pursuant to the TCPA. On the other hand, the FCC Order left open for interpretation and future litigation the means by which consent can be effectively revoked. That is, the FCC declared that revocation of consent can be made via any “reasonable means” that “clearly” expresses the called party’s “desire not to receive further calls.” However, the FCC failed to define what constitutes “reasonable means” or what amounts to a clear expression of a desire not to be called.

Because a company may be liable for up to $1500 per call made in violation of the TCPA, customers (and their counsel) have become increasingly savvy at exploiting the public’s distaste for telephone calls using automatic telephone dialing system and expanding what constitutes “revocation of consent” pursuant to the TCPA.

At the Soulliere trial, however, the current trend slowed, if even just for a moment. Mr. Epstein and Mr. Backman took the position that when consenting to receive telephone calls pursuant to the TCPA, the consumer very specifically consents to receipt of telephone calls to their cellular telephone number using an automatic telephone dialing system and/or prerecorded messages. Consequently, revocation of consent must be equally specific because no rule or law gives a consumer the power to stop phone calls in general.

Along these lines and with the support of several cases around the country, the approved jury instruction in Soulliere regarding revocation of consent stated as follows:

Consent is terminated when the actor knows or has reason to know that the other is no longer willing for him to continue the particular conduct. Thus, effective revocation of consent requires GREG SOULLIERE to clearly and expressly convey to CFIRM that his prior express consent to be called on his cellular telephone with an automatic telephone dialing system about his debt was being withdrawn and that CFIRM could no longer call him on his cellular telephone in order to collect the debt owed using an automatic telephone dialing system. The revocation cannot be wavering. It must be clear, unambiguous and specific so that CFIRM knows exactly what is being revoked and when it was revoked. Consent may be revoked orally or in writing.

Importantly, this instruction is not inconsistent with the FCC Order, as it embodies the notion that revocation may be made by any “reasonable means” and the requirement that effective revocation requires a clear expression of the called party’s “desire not to receive further calls.” Based on the instruction, effective revocation turns on whether or not the subjective reasonable person believes the caller should have known that it could no longer make telephone calls to a specific person and in a specific way. If a customer leaves a message for a caller intended to revoke consent pursuant to the TCPA, the revocation would be ineffective because the caller cannot verify who revoked consent. Likewise, revocation is ineffective when a customer tells a company that telephone calls are “inconvenient” or to not call during specific times because what is convenient is open for interpretation and a violation of the TCPA does not rest on the time of the day the call was made. As such, in Soulliere, while the jury’s state of mind is unknown, it is conceivable to conclude that the jury found that saying “please don’t call my cell phone” is not actual and affirmative revocation of consent under the TCPA because calling a cellular phone, in and of itself, does not violate the TCPA and because the caller did not have reason to know that the specific consent provided was revoked.

While the noose continues to tighten on how a company may legally connect with its customers and potential customers, liability pursuant to the TCPA is not a given. Therefore, customers and companies (not to mention their attorneys) must continually educate themselves regarding TCPA trends and conduct themselves accordingly.

This post was co-authored by Greenspoon Marder, P.A. attorneys Richard W. Epstein, Jeffrey A. Backman and Scott M. Wellikoff