Consumers Could Recover Damages under the TCPA, Even If Valid Consent Is Obtained

1231361_87655482Last month, a federal court in Seattle confirmed that consumers may sue for damages under the Telephone Consumer Protection Act (“TCPA”) even if they consented to receiving autodialed and/or pre-recorded telephone calls on their mobile phones.  Despite the fact that the TCPA is silent as to whether a consumer may revoke his/her consent under the TCPA, the federal court’s decision makes clear that consumers have the implicit right to revoke their consent and affords them the power to sue any telemarketer that ignores this request.

Underlying Facts of the Case

The facts of the Washington State case are as follows: the plaintiff initially requested that his local news station, the defendant, send him daily text messages containing the local weather report.  On its face, the defendant appears to have included all the proper TCPA disclosure language and secured the plaintiff’s express written consent to send the text messages.  After about a month, the plaintiff decided that he no longer wished to receive the defendant’s text messages and took advantage of the defendant’s interactive opt-out mechanism by texting the word “STOP” to the appropriate number.  Despite the plaintiff’s opt-out request, he continued receiving the defendant’s text messages.  The plaintiff alleges that he actively opted-out of receiving the defendant’s text messages 30-50 times to no avail, even going so far as calling and leaving a message at the defendant’s offices.

Court Denies Defendant’s Motion to Dismiss

Based on the fact that the TCPA does not specify that consumers have the right to sue for TCPA violations after revoking their consent, the defendant moved to dismiss the case.  While recognizing that the TCPA is silent as to whether a consumer may revoke his/her consent to receive unsolicited marketing calls and/or texts, the Court held that “the term ‘consent’ must be read to incorporate its common law meaning, absent Congressional indication to the contrary, and at common law consent may be revoked.”  The Court went on to state that allowing consumers to revoke their consent and sue under the TCPA is in line with the purpose of the TCPA, namely to protect consumers from unwanted automated telephone calls and messages. Lastly, the Court looked to the reasoning of the Federal Communications Commission (“FCC”) in its recent declaratory ruling In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc.  Although the FCC’s decision in SoundBite involved the use of an automated dialing system to confirm an opt-out request, the Court reasoned that the FCC’s decision implicitly demonstrates that consumers may revoke TCPA consent after it has been given.  Although the Court admitted that the FCC never articulated a rationale in SoundBite for deciding why the TCPA affords consumers the right to revoke consent, the Court followed the FCC’s reasoning nevertheless.

Protect Yourself against TCPA Class-Action Claims

Based on the findings of the Court, businesses may find themselves besieged with litigation from consumers who formerly provided, but later withdrew their consent.  It is important that businesses understand the various provisions of the TCPA and protect themselves before they find themselves served with legal process.

If you are interested in learning more about this topic, or if you have been served with legal process relating to the TCPA, please e-mail us at or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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