How To Revoke Consent To Call Your Cell Phone With Auto Dialers Or Pre-Recorded Messages


How To Revoke Consent To Call Your Cell Phone With Auto Dialers Or Pre-Recorded Messages

We have discussed elsewhere that often times creditors and collectors illegally call our cell phones with their computer or auto-dialed calls (robo calls) or pre-recorded messages.

In other words, not a live human being calling or leaving the message for us.

This can violate the Telephone Consumer Protection Act (TCPA), a federal law designed to stop these annoying computer (non human) calls to our cell phones.

But if we gave consent (permission) for the creditor or the collector to call our cell phone, then there is normally no violation of the TCPA.

So how do we take away or revoke that permission or consent?

We hope these frequently asked questions give you some guidance.

Always sit down with your consumer protection attorney as the following is general educational material and may or may not apply in your unique situation.

What Is Consent?

This is simply permission to the original creditor (or a collector collecting for the original creditor) to call your cell phone.

If you gave consent, then it is legal to call your cell phone with an auto dialer or with pre-recorded messages.


How Would I Have Given Consent?

The normal way is to give your cell phone number when you opened up the account with the creditor.

Creditors and collectors argue if you ever gave your cell phone number (or even called from it so it showed up on caller ID) that you have given consent.

The law does not say this but creditors and collectors will argue this.

But the bottom line is if you have given your number at any time to the creditor or collector, the safest thing to do is to revoke that consent.


Can I Revoke Consent As It Relates To My Cell Phone?

Yes.

Collectors and creditors like to say you can never revoke your consent.

I believe this is absurd. You can always revoke your consent. I don’t know of any circumstance where you can’t revoke consent.

I have challenged defense lawyers to push this point but they have all declined which tells me they know they do not have a good argument.

Recent clarifications to the law have made it absolutely clear that you CAN revoke consent.


What Are The Ways To Revoke Consent?

You can call or write and tell the company that you revoke your consent to receive calls on your cell phone.

If you send a letter, send it by certified mail, return receipt requested.

If you call, carefully document the time you called and what you said. Or you can record the conversation by telling the company you are recording it if the company agrees to allow you to record it.

This way there is no confusion over the fact that both you and the company you called agree (consent) to the call being recorded.


What Does It Mean If I Revoke Consent But I Still Get Calls To My Cell Phone?

This means the company calling is likely violating the TCPA if you are receiving auto dialed calls or calls with pre-recorded messages on them.

Remember if there is no permission to call you on your cell phone, then all the calls that are auto dialed or have pre-recorded messages likely violate the TCPA.

Violations of the TCPA can result in damages of $500 or up to $1500 per call.

We have a current case right now against the Birmingham Alabama debt collector AmSher where our client revoked consent but he still received over 260 robo dialed calls to his cell phone.


If I Revoked Consent, Or Never Gave It To The Creditor Or The Collector, What Do I Do Next?

We suggest you sit down with a consumer protection attorney to find out about your rights and to decide what is the best action for you to take.

Often the right action is to file suit which normally has a wonderful benefit of getting a lawbreaking creditor or collector from continuing to break the law when calling you.

And the damages of $500 or up to $1500 per call is nice also – nothing changes the illegal behavior of companies like paying out money.

If you live in Alabama and have any questions for us, please feel free to call us at 205-879-2447 or by filling out our contact form below or our general contact form here.

Thanks for reading this and I look forward to chatting with you.

John G. Watts


4 Comments

  1. tom says:

    Consumers need to revoke consent in writing by Certified Mail Return Receipt Requested. In “Osorio v. State Farm Bank,” (S.D.Fla. 2012), the court held that consent could NOT be revoked orally.

    • JohnGWatts says:

      Tom,

      Thanks for the comment. This is not what all courts say but this is our recommendation. Make the revoking of the consent very clear. We suggest this simple language: Don’t ever call me on my cell phone of ___________________. If you think I ever gave permission to call my cell phone, I’m now revoking it.

      Sometimes judges confuse the requirements under the FDCPA (Fair Debt Collection Practices Act) requirement for a “cease communications” letter — this must be in writing — with a revocation of consent to use a computer dialer to blow up your cell phone. They aren’t the same but some judges think so and then others follow.

      I’ll check out the case you mentioned.

      Thanks again for your contribution.

      John Watts

  2. John M says:

    Great dissertation but not true,. Check out Reyes Jr vs Lincoln Financial. Looks like the good guys won. The judges e said you can’t revoke consent (And I am interpreting here) When you buy a 50K car sign an agreement to pay for it and then decide later when you haven’t paid “Don’t auto dial me” TCPA cant overide a contracts terms:
    We agree with the district court that the TCPA does not permit a party who agrees to be contacted as part of a bargained‐for exchange to unilaterally revoke that consent, and we decline to read such a provision into the act.

    Read This:
    https://www.insidearm.com/news/00043038-breaking-2nd-circuit-says-tcpa-consent-no/

    • John Watts says:

      John,

      Thanks for your comment.

      You are correct that in part of the country the Reyes case is binding. But in the Eleventh Circuit (Alabama, Florida and Georgia) it has long been the law that consent can be revoked.

      This was clarified several years before Reyes case in Osorio v State Farm (746 F.3d 1242).

      Common-law notions of consent generally allow oral revocation. See Pepe v. Shepherd, 422 So. 2d 910, 911 (Fla. Dist. Ct. App. 1982) (“[I]t is axiomatic that no agreement need be in writing unless required by statute or contract.”). Indeed, counsel for State Farm conceded at oral argument that “the common law would allow an oral revocation.” We therefore conclude that Betancourt and Osorio, in the absence of any contractual restriction to the contrary, were free to orally revoke any consent previously given to State Farm to call No. 8626 in connection with Betancourt’s credit-card debt.

      Furthermore, we note that allowing consent to be revoked orally is consistent with the “government interest articulated in the legislative history of the Act [that] enabl[es] the recipient to contact the caller to stop future calls.” Maryland v. Universal Elections, Inc., 729 F.3d 370, 376-77 (4th Cir. 2013). Senator Hollings, the TCPA’s sponsor, described these calls [**30] as “the [*1256] scourge of modern civilization. They wake us up in the morning; they interrupt our dinner at night; they force the sick and elderly out of bed; they hound us until we want to rip the telephone out of the wall.” 137 Cong. Rec. 30,821 (1991). Senator Hollings presumably intended to give telephone subscribers another option: telling the autodialers to simply stop calling.

      Finally, we note that the FCC has provided persuasive guidance confirming that called parties may revoke their consent orally. In a recent declaratory ruling, the FCC explained that “requests to stop receiving voice calls . . . can be confirmed during the same call in which a consumer has expressed a desire to opt out.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 15391, 15398 (2012). This guidance is not dispositive of the present case because the FCC issued its ruling after the calls in question and because the ruling may not have been promulgated with the requisite meaningful review to invoke Chevron deference. See Gager, 727 F.3d at 271 n.5 (“Chevron deference appears to be inappropriate here because the FCC never articulated a rationale for deciding why the TCPA [**31] affords consumers the right to revoke their prior express consent.”). Nevertheless, we find its common-sense interpretation to be of persuasive value. See United States v. Mead Corp., 533 U.S. 218, 234, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001) (HN19 “[A]n agency’s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires.”) (internal quotation marks omitted).

      Now the question is if the contract says you must revoke in writing, do you have to do that? We have always told our clients that is the best practice.

      What if the contract says you can NEVER revoke consent? Reyes would indicate that is allowable — but it is a question in other places. Frankly there are judges who agree with Reyes and there are those who are pointing out the flaws in Reyes. (One example is Ammons v. Ally Fin., Inc., F. Supp. 3d , 2018 U.S. Dist. LEXIS 108588, 2018 WL 3134619, at *6 (M.D. Tenn. June 27, 2018)).

      So it is an interesting issue and the debt collectors do like Reyes. This is a “continuing story” — we’ll have to see how it shakes out.

      Thanks again for your comment.

      John Watts

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