Contracts Do Matter Under the TCPA – At Least in the Second Circuit

    View Author July 2017

    Lawsuits are brought on a daily basis against businesses across the US under the Telephone Consumer Protection Act (TCPA), alleging that consent to receive telephone calls and messages was later revoked. The story is well-known to many businesses that need to communicate with their customers directly: the customer initially consents to receiving non-telemarketing calls when he or she signs up for an account or subscribes to a service, only to later sue the business under the TCPA claiming that the consent had been revoked – sometimes orally or in other difficult to disprove ways.

    While some courts and even the Federal Communications Commission (FCC) have endorsed the view that customers can revoke express consent at any time, the recent opinion by the US Court of Appeals for the Second Circuit in Reyes v. Lincoln Automotive Financial Services, No. 16-2104 (2d Cir. June 22, 2017), imposes an important limit on this theory, at least within the Second Circuit: consent provided as part of a contract cannot be revoked unilaterally. It also highlights the continued importance of customer agreements as a tool to manage risk in TCPA litigation, and the missed opportunities that come with not updating these agreements frequently.

    Eduardo Guzman examines this case further and its implications on TCPA generally in this article, as originally published in Wolters Kluwer's Antitrust Law Daily and Banking & Finance Law Daily.