Those companies that make their living by telemarketing calls -- as well as the businesses that supply the technology to do so – are facing challenges from all sides. The biggest one is the TCPA, or Telephone Consumer Protection Act, which permits companies to make telephone solicitations using autodialers and pre-recorded messages once they have a consumer’s consent to do so. But what if the consumer changes their mind?
That was the issue addressed in a recent blog post at the Associate of Corporate Counsel website.
In an collaborative opinion piece by four attorneys – Catherine Meyer, Andrew Bluth, Amy Pierce and Elaine Lee – the case was dissected citing recent court rulings which would seem to indicate that yes, customers can indeed revoke their given permission for telemarketers to call them. That puts the callers into a somewhat gray legal territory. If consent is revoked, and they call before the callers know that permission was pulled, are they liable under TCPA?
“Most authorities and courts agree that, under the TCPA, consumers have the right to revoke previously given consent to be called using an ATDS or pre-recorded message (also referred to as ‘opting out’),” the attorneys wrote. “More recently, however, courts have been asked to decide whether a consumer is permitted to revoke this consent where it was previously given as part of an independent contractual arrangement, or whether that right to revoke can be waived.”
They then cited a number of precedent-setting court cases (The full blog can be found HERE) which makes the argument that consumers can indeed revoke their consent, saying, “the courts determined — for virtually identical reasons — that a consumer has the ability to revoke his or her previously given consent under the TCPA. Notably, [the] courts focused upon the common law principle that consent is revocable, as well as the fact that the TCPA is a consumer-friendly statute.
The bottom line is, consumers that have given permission can also take it away. The real question is, at what point does a company become liable if they call after permission has been revoked? It would appear the courts will be visiting this issue again and again.