Can you revoke consent for telemarketing calls if it’s part of a contract? The answer depends on where you live. The Second Circuit (covering New York, Connecticut, and Vermont) and the Eleventh Circuit (covering Alabama, Florida, and Georgia) agree that consent tied to a contract cannot be unilaterally revoked. However, they differ on broader interpretations of consumer protections under the TCPA.
Key Takeaways:
- Second Circuit (Reyes v. Lincoln): Consent in contracts is irrevocable, even if you later change your mind. Businesses in these states can rely on this protection.
- Eleventh Circuit (Medley v. Dish Network): Agrees with the Second Circuit on contract-based consent but also challenges FCC rules on consent revocation methods, creating more flexibility in non-contractual scenarios.
- FCC Opt-Out Rule (Effective April 11, 2025): Consumers can revoke consent for marketing messages in any reasonable way (e.g., replying “STOP”), but this doesn’t apply to consent tied to contracts.
Quick Comparison:
| Aspect | Second Circuit (Reyes) | Eleventh Circuit (Medley) |
|---|---|---|
| Revocation of Consent | Not allowed if part of a contract | Not allowed if part of a contract |
| FCC’s 1-to-1 Rule | Not addressed | Struck down as regulatory overreach |
| Consumer Protections | Limited in contract-based scenarios | Broader for general consent scenarios |
For consumers, understanding how and when consent was given is crucial to protecting your rights. For businesses, compliance depends on jurisdiction and clear contract terms. Always review contracts and stay updated on TCPA rules.
S3 E18: Are Recent Rulings Changing the Telemarketing Regulatory Landscape?
Second Circuit Ruling: Contract-Based Consent Limits
The Second Circuit Court of Appeals took a different stance on TCPA consent revocation in the pivotal case of Reyes v. Lincoln Automotive Financial Services. This decision established that contract law can override general TCPA rights to revoke consent when that consent is part of a binding agreement. Let’s dive into how the court’s narrower interpretation of contractual consent reshapes this area of law.
Consent Within Contracts
The court’s ruling emphasized that consent embedded in a contract cannot be revoked. Essentially, when someone agrees to be contacted as part of a negotiated contract, they can’t later decide to withdraw that consent. This principle was highlighted in the case of Alberto Reyes, who leased a Lincoln MKZ in 2012. As part of his lease agreement, Reyes consented to be contacted by Lincoln. However, after defaulting on his payments, he attempted to revoke this consent. Lincoln, undeterred, continued calling him, leading Reyes to sue for $720,000 in damages.
The Second Circuit ruled in favor of Lincoln, stating that Reyes’s consent was not the same as the typical TCPA consent that can be freely revoked. The court made a clear distinction between gratuitous consent, which can be withdrawn, and contractual consent, which is irrevocable due to its integration into a bilateral agreement.
"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."
The judges further explained that allowing unilateral revocation would disrupt established principles of contract law. They noted that Congress, when drafting the TCPA, did not indicate any intention to deviate from the common-law understanding that consent tied to a contract is binding:
"It was well established at the time that Congress drafted the TCPA that consent becomes irrevocable when it is integrated into a binding contract, and we find no indication in the statute’s text that Congress intended to deviate from this common-law principle in its use of the word ‘consent.’"
This distinction between types of consent has important implications for businesses and consumers alike.
Effects on Telemarketing Practices
The Second Circuit’s decision carries important consequences for telemarketing practices. For businesses, it provides a solid legal framework to defend against TCPA lawsuits that stem from consent revocation claims – so long as the consent was part of a valid contract.
Here’s how this benefits businesses:
- Stronger legal protection: When consent clauses are properly included in contracts, companies can continue contacting customers even if they later attempt to revoke consent.
- Broader application: This ruling is binding in states under the Second Circuit’s jurisdiction – Connecticut, New York, and Vermont.
However, the court recognized potential risks of misuse. It acknowledged that businesses could exploit this interpretation by embedding consent clauses into standard contracts, making it nearly impossible for consumers to revoke consent. Addressing this concern, the court noted:
"We are sensitive to the argument that businesses may undermine the effectiveness of the TCPA by inserting ‘consent’ clauses of the type signed by Reyes into standard sales contracts, thereby making revocation impossible in many instances. … But this hypothetical concern, if valid, is grounded in public policy considerations rather than legal ones; if the abuse came to pass, it would therefore be ‘for the Congress to resolve – not the courts.’"
For consumers, this ruling limits their ability to stop unwanted calls when their original consent was tied to a contract. Unlike other circuit rulings that allow more flexibility for revocation, the Second Circuit’s approach creates a stricter precedent for TCPA enforcement. This distinction underscores the ongoing debate about balancing consumer protection with contractual obligations.
Eleventh Circuit Ruling: Expanded Consumer Protections
In a pivotal decision, the Eleventh Circuit Court of Appeals took a broader stance on consumer protections under the Telephone Consumer Protection Act (TCPA) in the case of Medley v. Dish Network, LLC. This ruling not only reinforced consumer rights but also pushed back against federal overreach in telemarketing regulations. Unlike the Second Circuit, which strictly adhered to contract terms, the Eleventh Circuit expanded the scope of consumer revocation rights while closely examining the Federal Communications Commission’s (FCC) regulatory limits.
Oral and Written Consent Revocation
The court affirmed that consumers can revoke consent through any reasonable method, regardless of whether the consent was initially provided orally or in writing. However, it aligned with the Second Circuit in holding that consent embedded within a binding contract cannot be revoked unilaterally. Such consent remains enforceable unless both parties agree to modify the terms.
The court highlighted this principle by stating:
"an ‘agreement is a manifestation of mutual assent on the part of two or more persons,’ [and thus] it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed."
Additionally, the court clarified that the FCC’s 2015 guidance, which permitted revocation through any reasonable means, was meant to apply to general consent scenarios rooted in common law principles. For residents of Alabama, Florida, and Georgia, this ruling provides clearer guidelines on when consent can be revoked and when it remains binding.
These interpretations laid the groundwork for the court’s subsequent challenge to the FCC’s regulatory policies.
Rejection of FCC’s One-to-One Rule
In a move that underscored its focus on consumer rights, the Eleventh Circuit addressed the FCC’s regulatory overreach. On January 24, 2025, the court struck down the FCC’s one-to-one consent rule, coinciding with the FCC’s decision to delay enforcement pending judicial review. The court determined that the FCC had exceeded its authority under the TCPA by imposing restrictions not explicitly stated in the law. Specifically, the court found that the rule conflicted with the statutory interpretation of "prior express consent".
Commenting on the FCC’s 2023 order, the court noted:
"The Eleventh Circuit ruled that the FCC exceeded its legal authority by enforcing additional consent restrictions not explicitly outlined in the Telephone Consumer Protection Act (TCPA)."
The court also criticized two specific provisions of the order:
"The court found that the 2023 Order’s 1) one-to-one consent restriction and 2) ‘logically and topically related’ restriction conflict with the ‘ordinary statutory meaning’ of ‘prior express consent’ found in the TCPA."
This ruling effectively allows businesses to continue using a single instance of consumer consent for multiple lead generators. The FCC had initially introduced the one-to-one rule to limit excessive telemarketing calls by requiring consumers to provide consent to each individual seller.
While the matter has been sent back to the FCC for further review, the decision creates some uncertainty around future regulations. For now, consumers can still revoke consent through reasonable methods, even as businesses prepare for upcoming rule changes set to take effect on April 11, 2025.
For those dealing with persistent telemarketing calls, platforms like ReportTelemarketer.com offer resources to investigate violations and take action, such as filing cease and desist letters against companies that breach consumer protection laws.
Key Differences Between Second and Eleventh Circuit Approaches
Both the Second and Eleventh Circuits agree that consent given as part of a bargained-for exchange cannot be revoked. However, they differ in how they interpret the scope of this principle. The Second Circuit confines its perspective to the terms outlined in contracts, while the Eleventh Circuit highlights that the TCPA does not specify how consent should be given or revoked. This distinction sheds light on how each circuit addresses modern telemarketing issues.
The Second Circuit oversees New York, Connecticut, and Vermont, while the Eleventh Circuit covers Alabama, Florida, and Georgia. Notably, district courts in states like Washington, California, and Illinois have rejected the Second Circuit’s approach, adding to the complexity for businesses operating nationwide.
The rulings’ timing and scope further emphasize the differences. The Second Circuit’s decision in Reyes established the principle that consent incorporated into a binding contract is irrevocable. The court stated:
"It was well-established at the time that Congress drafted the TCPA that consent becomes irrevocable when it is integrated into a binding contract, and we find no indication in the statute’s text that Congress intended to deviate from this common-law principle in its use of the word ‘consent’."
On the other hand, the Eleventh Circuit in Medley took a broader view, noting that the TCPA does not explicitly address how consent can be revoked. This difference in interpretation is summarized in the table below.
Comparison Table: Legal and Practical Effects
| Aspect | Second Circuit (Reyes) | Eleventh Circuit (Medley) |
|---|---|---|
| Revocation of Consent | Not allowed if part of a bargained-for exchange | Not allowed if part of a bargained-for exchange |
| Impact of FCC Ruling | Applies only to gratuitous consent, not contractual consent | Limited to common law tort principles, not contractual consent |
These differing interpretations have practical consequences for businesses operating across multiple states. Companies must navigate varying consent standards, relying on contractual provisions in some jurisdictions while facing stricter revocation rules in others. This is particularly significant given the statutory damages under the TCPA, which range from $500 to $1,500 per call.
While both circuits ground their rulings in contract law, the Eleventh Circuit’s acknowledgment of the TCPA’s silence on revocation methods could lead to further judicial clarification. For consumers battling unwanted calls, these decisions highlight the importance of knowing how and when their consent was granted. Tools like ReportTelemarketer.com can assist in investigating TCPA violations and ensuring businesses comply with revocation requests within the legal framework.
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Effects for Consumers and Businesses
The conflicting rulings from the Second and Eleventh Circuits have created a tangled web of legal challenges for consumers trying to stop unwanted calls and for businesses striving to comply with telemarketing regulations. These legal differences ripple far beyond courtroom decisions, impacting everyday interactions.
Consumer Challenges and Rights
When it comes to consumer rights, much depends on how consent is obtained and interpreted. For example, in Medley v. Dish Network, LLC, a consumer’s attempt to revoke consent was denied because the service contract explicitly prohibited it. This decision is consistent with earlier rulings that highlight the binding power of consent when tied to a contract.
But there’s good news for consumers outside of contract-based scenarios. The FCC’s Opt-Out Rule, effective starting April 11, 2025, introduces critical safeguards. Under this rule, consumers can withdraw their consent in any reasonable way – like replying with “STOP” or “QUIT” – and businesses must honor the request within ten business days. The rule also makes an important distinction: opting out of marketing messages doesn’t necessarily stop informational messages, unless the consumer explicitly opts out of all communications.
Interestingly, some district courts, including those in Washington, California, and Illinois, have rejected the idea that consent tied to a contract cannot be revoked. These courts maintain that the Telephone Consumer Protection Act (TCPA) allows consumers to revoke consent regardless of contractual terms. This split in judicial interpretation leaves consumers with varying levels of protection depending on where they live.
Compliance Considerations for Businesses
For businesses, navigating this patchwork of legal interpretations is no small task. The stakes are high – violations of the TCPA can result in statutory damages ranging from $500 to $1,500 per call. On top of that, the FCC’s rule requiring businesses to honor revocation requests within ten days adds significant pressure to streamline their compliance systems. Managing these requests becomes even more complicated for companies with multiple departments or third-party vendors.
Another sticking point is defining what counts as a “reasonable” opt-out request. For instance, employees must be trained to recognize clear revocation signals like a simple “STOP” message. Complicating matters further, the FCC’s “Revoke All” rule requires businesses to cease all communications – except for a one-time non-marketing confirmation message – when a consumer opts out entirely.
Legal experts recommend that businesses take a close look at their customer contracts. Specifically, contracts in Second and Eleventh Circuit jurisdictions should clearly spell out whether unilateral revocation of consent is allowed. However, to minimize litigation risks, many companies choose to honor all revocation requests, regardless of the jurisdiction.
The FCC has extended some compliance deadlines to April 11, 2026, giving businesses additional time to update their systems. In the meantime, companies are advised to create clear distinctions between different messaging programs. As Privacy World points out:
"clearly distinguish different messaging programs so that a simple ‘Stop’ opt-out to one program (e.g., store discounts) does not apply to another program (e.g., store loyalty programs)".
In this ever-changing compliance landscape, both consumers and businesses need to stay alert and adaptable.
Consumer Protection Resources
Understanding your rights under the TCPA is key to protecting yourself from unwanted calls and texts. While the legal framework can be tricky to navigate, the TCPA gives you the tools to push back against telemarketers – if you know what steps to take.
Here’s how to safeguard yourself:
- Keep Records: Note the date, time, content, and caller ID for every unwanted call or text. Recordings can also be valuable.
- Ask for Details: During calls, request the caller’s name, company, and contact information.
- Use the National Do Not Call Registry: Register your number to reduce unsolicited calls.
- Express Non-Consent: Clearly tell callers you do not agree to further communication.
- Request Internal Do-Not-Call Listing: Ask to be added to the company’s internal do-not-call list and document the date and time of your request.
If the calls persist, you can file a complaint with the FCC. For more formal action, report violations to both the FCC and FTC. These agencies rely on consumer reports to shape enforcement strategies and improve protections.
For additional support, platforms like ReportTelemarketer.com can make this process easier.
How ReportTelemarketer.com Can Help
ReportTelemarketer.com is a consumer-focused platform that helps individuals stop unwanted telemarketing calls. Founded by Stefan Coleman, the site has already assisted over 30,000 people in understanding their rights and taking action.
"The TCPA is an important law that was enacted in 1991 by Congress to protect you from telemarketers that are illegally calling or texting you".
The platform uses advanced tools to investigate reported numbers and verify whether TCPA violations have occurred. If violations are confirmed, they can send cease and desist letters or even file formal complaints on your behalf.
The best part? The service is entirely free. You won’t pay for investigations, legal actions, or representation. Instead, attorney fees are recovered from telemarketers after successful enforcement.
"The TCPA empowers enforcement against telemarketers contacting you without written consent".
Consumers may be entitled to $500 per illegal call or text under TCPA enforcement, offering both compensation and a strong deterrent against future violations.
Beyond individual cases, ReportTelemarketer.com also provides educational tools to help you understand telemarketing laws and your legal rights. The platform prioritizes your privacy while raising awareness about problematic telemarketers, benefiting the broader public.
For more complex cases – such as those involving repeated violations or disputes over contract-based consent – it’s wise to consult a TCPA attorney. ReportTelemarketer.com’s legal team is equipped to handle these challenges, ensuring that no valid violation is ignored.
Conclusion
The differing interpretations between the Second and Eleventh Circuits regarding TCPA consent revocation have created a patchwork of legal standards that impact both consumers and businesses across the United States. The Second Circuit views consent as irrevocable when included in a bargained-for contract, while the Eleventh Circuit permits limited or restricted consent and has overturned the FCC’s one-to-one consent rule. Adding to the complexity, some district courts have pushed back against the Second Circuit’s stance, leaving consumers and businesses navigating an inconsistent legal environment.
For consumers, understanding these legal nuances is essential to safeguard their rights. The Eleventh Circuit has emphasized the importance of a clear and unmistakable statement when establishing consent. This evolving precedent highlights the need for consumers to actively monitor and manage their consent to ensure their preferences are respected.
On the other hand, businesses face significant compliance hurdles due to these conflicting interpretations. To mitigate risks, it’s wise for businesses to honor revocation requests regardless of jurisdiction, especially with the FCC’s Opt-Out Rule, which came into effect on April 11, 2025. Reviewing contracts for bargained-for consent and adhering to relevant state laws is critical. Consumers seeking effective ways to address violations can turn to resources like ReportTelemarketer.com for support.
As the legal framework continues to shift, courts are increasingly rejecting consent agreements that lack clarity and unmistakable terms. Until a uniform standard is established, both consumers and businesses must stay vigilant and informed about their respective rights and obligations. With the potential for substantial statutory damages, strict adherence to compliance requirements is non-negotiable.
FAQs
How do the Second and Eleventh Circuit rulings on TCPA consent revocation affect consumers across the U.S.?
The rulings from the Second and Eleventh Circuits on the Telephone Consumer Protection Act (TCPA) clarify that consumers cannot revoke consent if it was part of a bargained-for agreement. Essentially, if consent to receive calls or texts is included in a contract, withdrawing that consent becomes much more restrictive. This interpretation can make it harder for consumers to opt out of communications tied to such agreements.
But change is on the horizon. Starting April 11, 2025, updated TCPA rules will grant consumers the ability to revoke prior express consent in any reasonable manner. This shift gives individuals more control over unwanted calls and texts. However, the impact of these changes could vary depending on the state and jurisdiction, so staying informed about your rights is crucial as the legal landscape evolves.
For those dealing with unwanted telemarketing calls or texts, platforms like ReportTelemarketer.com offer free tools and resources to help protect your rights and address potential violations.
What legal risks do businesses face when consent is included in a contract under TCPA rules?
When consent is included in a contract under the Telephone Consumer Protection Act (TCPA), businesses need to be aware of specific legal risks. The Eleventh Circuit has clarified that consent given as part of a binding agreement cannot be revoked by the consumer on their own. This means companies can rely on the initial consent for continued communications.
That said, businesses must tread carefully. If they fail to follow proper consent protocols or misrepresent the terms of consent, they could face hefty penalties. These fines range from $500 to $1,500 per violation, depending on whether the violation is considered willful. To reduce the likelihood of these issues, it’s critical for businesses to ensure that consent is clear, explicit, and thoroughly documented in any contract.
How will the FCC’s new Opt-Out Rule, effective April 11, 2025, change how consumers can stop telemarketing calls?
The FCC’s New Opt-Out Rule: What You Need to Know
Starting April 11, 2025, the FCC’s new Opt-Out Rule puts more power in your hands when it comes to telemarketing calls. Under this rule, you can revoke your prior consent to receive calls or texts in any reasonable way. Whether it’s through a phone call, an email, or even a written note, as long as your request is clear, businesses are obligated to respect it.
Once you make it known that you no longer wish to be contacted, companies have 10 days to stop all communications. This includes both marketing messages and informational updates. The rule ensures a simple, effective way for you to safeguard your privacy and avoid those annoying interruptions.
