IF YOU’RE BEING HARASSED OR BOTHERED BY PHONE CALLS….
LET US HELP YOU MAKE THEM STOP!
In law, as in life, consent need not be an all-or-nothing proposition. Having already concluded that the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., allows for the oral revocation of consent, see Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014), we now hold that the Act permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system.
As relevant here, the TCPA makes it unlawful for “any person,” absent the “prior express consent of the called party,” to make any non-emergency call “using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service[.]” 47 U.S.C. § 227(b)(1)(A)(iii). Anyone who violates the TCPA may be sued in federal court for “actual monetary loss” or $500 in damages for each violation, “whichever is greater.” § 227(b)(3)(B). Treble damages are also available for knowing or willful violations.
The TCPA was enacted to address certain invasive practices related to “unrestricted telemarketing,” and is designed to protect consumers from receiving unwanted and intrusive telephone calls. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012). Although the TCPA is silent on the issue of revocation, our decision in Osorio holds that a consumer may orally revoke her consent to receive automated phone calls.
We reasoned in Osorio that, based upon statutory silence regarding the means for providing or revoking consent, we could infer that Congress intended for the TCPA to incorporate the common-law understanding of consent, which generally allows for oral revocation. See id. Moreover, we explained that “allowing consent to be revoked orally is consistent with the government interest articulated in the legislative history” of the TCPA—namely, enabling the recipient of incessant and unwanted calls to “tell[ ] the autodialers to simply stop calling.” Id. at 1255–56 (internal quotation marks and citation omitted). Because the TCPA is silent as to the partial revocation of consent, our analysis is again informed by common-law principles.
We therefore conclude that the TCPA allows a consumer to provide limited, i.e., restricted, consent for the receipt of automated calls. It follows that unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA. “The consent principle . . . makes [a person’s] right of self-determination or autonomy the centerpiece of the law on intentional torts.” Dobbs, The Law of Torts § 105, at 319.
Our conclusion is supported by the maxim that the greater power normally includes the lesser. We think it logical that a consumer’s power under the TCPA to completely withdraw consent and thereby stop all future automated calls, see Osorio, 746 F.3d at 1255, encompasses the power to partially withdraw consent and stop calls during certain times. See Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345–46 (1986) (concluding that “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling”); Davis v. Commonwealth of Massachusetts, 167 U.S. 43, 48 (1897) (“The right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.”).
Under the TCPA, a consumer may partially revoke her consent to receive automated phone calls.
