Is Express Revocation Necessary? District Court Finds Genuine Dispute of Material Fact Regarding TCPA Consent, Absent Evidence of Express Revocation

A Kentucky district court judge recently granted in part and denied in part a defendant’s motion for summary judgment in a Telephone Consumer Protection Act (TCPA) case, Barnett v. First National Bank of Omaha. The court held that the plaintiff’s request to have information sent to him via the mail instead of over the phone, along with the plaintiff’s refusal to talk to a collector when the defendant called after choosing mailed delivery, gave rise to a genuine issue of fact as to whether the plaintiff revoked consent to be contacted, even without explicit revocation. In Barnett v. First National Bank of Omaha, the court examined consent and revocation under the FCC regulations that implement the requirements of the TCPA.

There, the plaintiff obtained a credit card from the defendant, using his cell phone as a way for the defendant to contact him. In 2019, the plaintiff was unable to make his minimal monthly payment, and the defendant started contacting him via its telephone system to discuss his missed payments, eventually contacting the plaintiff 574 times, an average of 3.2 times per day. At some point, the plaintiff requested the defendant to mail him his billing statements and started hanging up the phone on defendant’s representatives.

The plaintiff filed suit in the Western District of Kentucky, alleging the defendant violated the TCPA (47 U.S.C. § 227) and the Kentucky Consumer Protection Act (KCPA) (Ky. Rev. Stat. § 367.170) by contacting him via an automated telephone dialing system before and after he allegedly revoked consent to be contacted. The plaintiff also brought an intrusion upon seclusion claim against the defendant. The defendant filed a motion for summary judgment.

Relying on the Supreme Court’s holding in Facebook v. Duguid to find that the defendant did not use an automated telephone dialing system, the court granted the defendant’s motion on that issue and then focused its analysis on whether the calls made to the plaintiff occurred after consent had been revoked.

The defendant argued that the plaintiff never specifically revoked consent to be contacted after he listed his cell phone number on his credit card application. The plaintiff argued that he revoked consent when he (1) told the defendant not to call him and (2) asked the defendant’s representatives to mail his statements or hung up on them when they called. The defendant countered that the plaintiff had never provided “clear revocation” of his consent.

While the court noted that the TCPA is “silent on whether and how a consumer may revoke previously-granted consent,” the court ultimately, looking at the “totality” of the circumstances, found that the arguments of the parties clearly demonstrated remaining disputed issues of fact for a jury.

The court’s decision in Barnett provides insight into how courts may consider disputes over consent, absent express revocation under the TCPA. Even if a plaintiff does not expressly revoke consent to be contacted, this does not automatically guarantee a defendant will prevail on summary judgment.