Revocation of Consent after the DC Circuit’s TCPA Ruling

Print Friendly, PDF & Email

March 28, 2018

Revocation of Consent

The reasonableness of consent revocation was one of four issues addressed in the recent decision on appeal of the Federal Communications Commission’s (“FCC”) Telephone Consumer Protection Act (“TCPA”) 2015 Order by the United States Court of Appeals for the D.C. Circuit.

How did the D.C. Circuit rule on the revocation of consent issue?

The ruling of the D.C. Circuit as to the proper scope of consent revocation represented one of two, albeit limited, instances in which the Court upheld the 2015 Order in its decision.  As those operating in the telemarketing space know, the TCPA itself does not speak to a consumer’s right to revoke previously provided consent.  Nevertheless, courts and the FCC have universally interpreted TCPA regulations to permit such revocation.  In affirming the FCC’s determination as to the scope of the right to revoke, the law on this issue remains that a call (or text) recipient is free to revoke consent through any means that reasonably conveys the intent to have such calls (texts) cease, whether that intent it is communicated orally or in writing.

In its decision, the D.C. Circuit specifically emphasized the fact that the FCC’s 2015 Order did not, however, address whether parties to a contract can agree to the manner in which a call recipient may revoke previously provided consent.  Importantly, this emphasis highlights a logical takeaway from the decision, namely if consent is provided as a part of a contract, including as part of a website registration process, that contract can also expressly provide for the manner in which the call recipient must revoke consent in order for the revocation to be valid.

The Implications of the D.C. Circuit’s Revocation of Consent Decision

The D.C. Circuit’s revocation of consent ruling should lead to a wholesale reexamination of consumer facing contracts used by telemarketers and their lead generator partners.  With the green light from the D.C. Circuit Court of Appeals, the opportunity to procure agreement from consumers as to the manner in which consent to receipt of calls and/or text messages must be revoked is one that should not be taken for granted or overlooked.  Against this backdrop, it is critical to have contracts, website terms and conditions, and telemarketing practices and procedures examined by experienced counsel.

If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are the subject of a TCPA lawsuit, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for information 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.

Attorney Advertising

D.C. Circuit Vacates FCC’s Autodialer Definition Interpretation

Facebook Argues Definition of “ATDS” and “Emergency” Call in TCPA Lawsuit

Human Intervention Defeats TCPA ATDS Claim

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, 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.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin