U.S. Eleventh Circuit - The FindLaw 11th Circuit Court of Appeals Opinion Summaries Blog

Consumers Can Partially Revoke Consent to Automated Calls

Wouldn't it be great if robocallers actually listened when you told them not to call?

That's what Emily Schweitzer was thinking when she filed suit against a credit card company for making robocalls to her at work. A trial judge dismissed her case -- because, after all, the robots weren't listening -- but a federal appeals court said she had a right to stop the work-hour calls under the Telephone Consumer Protection Act.

"In law, as in life, consent need not be an all-or-nothing proposition," the U.S. Eleventh Circuit Court of Appeals said in Schweitzer v. Comenity Bank. "[W]e now hold that the Act permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system."

Telephone Consumer Protection Act

Schweitzer's case came to the appeals court after the trial judge granted a summary judgment in favor of the bank. The trial court said the bank did not know and had no reason to know that she did not want to be called.

The Eleventh District reversed, saying telemarketing laws were designed to protect consumers from unwanted and intrusive telephone calls. Each violation of the TCPA carries a $500 penalty or actual damages, whichever is greater.

Although Schweitzer had given consent to receive calls when she signed up for a bank card, the appeals panel said that the TCPA allows a consumer to revoke consent. Partial revocation logically follows.

"Our conclusion is supported by the maxim that the greater power normally includes the lesser," the court said.

'No' Means 'Not Now'

The court ruled in a previous case, Osorio v. State Farm Bank, that consumers have a right to orally revoke consent. Schweitzer orally revoked her consent for calls during specific hours.

"If you guys cannot call me, like, in the morning and during the work day, because I'm working, and I can't really be talking about these things while I'm at work," she said. "My phone's ringing off the hook with you guys calling me."

Holland & Knight, commenting on the decision, said the TCPA has never been more important to companies that use robo-dialing systems.

"[I]n light of the Court's broad reading of the TCPA, companies should take a close look at their automated telephone dialing system policies to confirm legal compliance," they said.

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