TCPA Case Complicates Consent
8 October 2018
commercial litigation, Healthcare, Medical, medical reimbursement, Reimbursement
A recent Telephone Consumer Protection Act (TCPA) case involving a married couple once again illustrates some of the trickier aspects of TCPA consent. The couple had a cell phone account that was in the husband’s name, and there were two different phone numbers under the account. When the husband signed up for a credit card, he gave his consent to receive calls and messages from an autodialer, as per the cardholder agreement terms. The account was solely in the husband’s name and he did not request a card for his wife.
When the husband signed up for the credit card, he supplied both his cell phone number as well as his wife’s number and he did, at one point, inform a customer service representative that he could be contacted using his wife’s number. When the husband began to fall behind on payments, the bank that issued his credit card began calling his number as well as his wife’s number using an automatic telephone dialing system (ATDS).
The wife spoke to a customer representative and requested that they cease calling her number, a few days later her husband did the same by requesting that the bank stop calling both of the numbers. However, the calls continued to both numbers until the husband once again asked for the calls to cease, which they did. Shortly thereafter, the couple (the Plaintiff) filed a TCPA lawsuit against the bank (the Defendant).
The Defendant argued that the Plaintiff provided prior express consent to contact both numbers and that his consent precluded the wife’s TCPA claim; in addition, the defendant cited a decision made in another case using the principle that by signing the credit card agreements, the Plaintiff bargained away his consent revocation right. After initially agreeing that the Plaintiff did consent to receive automated calls at both of the cell phone numbers, a federal judge ultimately rejected the idea that the Plaintiff contractually waived the right to revoke consent based on the TCPA.
To read more about the case, please visit https://www.manatt.com/Insights/Newsletters/TCPA-Connect/He-Said-She-Said-Struggles-With-Couples-TCPA.
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