Taking It Back: Consumers May Revoke Cell Phone Consent, Says Third Circuit

Debt collectors be warned: consumers have the right to revoke their consent to be robodialed on their cellular phones, says the Third Circuit, and collection calls placed after revocation violate federal law and can result in stiff civil penalties. In the case of Gager v. Dell Financial Services, LLC, 727 F.3d 265 (2013), the Plaintiff, Ashley Gager, divulged her cell phone number when she signed up for a line of credit with Dell to purchase computer equipment. When she defaulted, Dell contacted her on her cell phone using an auto dialing technology to collect on the debt. After receiving several auto dialed calls, Ms. Gager sent a letter demanding that Dell cease calling her phone number. When Dell ignored her request and continued to call her at least 40 times in three weeks, Gager filed suit claiming that Dell’s actions violated the Telephone Consumer Protection Act (TCPA).

The Third Circuit, reversing dismissal by the trial court, held that even though Ms. Gager gave her "prior express consent" when she put her cellular phone number on her credit application, her letter to Dell served as an effective revocation of consent. The appeals court held that the TCPA must be read to include the common law right to revoke consent at any time, "because the TCPA was intended to protect consumer rights, not restrict them." Notably, Gager’s revocation was in writing, and, thus, the court did not address the crucial question of whether or not oral revocation is sufficient to trigger the TCPA’s protections. This issue remains unresolved in the Third Circuit.

In the same decision, the appeals court resolved a second important question: do debt collection calls to cellular phones using auto dialers fall within the "existing business relationship" exception of the TCPA? The answer in the Third Circuit is unequivocally "No." Even though the TCPA carves out an exemption for debt collection calls made to residential (i.e. landline) phones, the exemption does not apply to calls to wireless telephone numbers. The consequences of failing to react to revocation of consent are severe: callers can be tagged with liability of $500 to $1,500 for each illegal call.