ATLANTA — A federal judge for the U.S. Court of Appeals for the 11th Circuit has ruled that the Telephone Consumer Protection Act (TCPA) allows a consumer to partially revoke consent to being called by an automatic telephone dialing system.
According to the August 10 decision by Judge Adalberto Jordan, the plaintiff, Emily Schweitzer, had sued the Comenity Bank for continuing to call her using an automated phone system during morning and business hours, even after she requested that Comenity not contact her during those times. Schweitzer appealed an earlier court decision in the case in which the district court granted summary judgement in favor of the bank.
The case centers around a credit card that Schweitzer had applied for and received in 2012. She had provided her cellular phone number to Comenity in the credit card application.
In 2013, when Schweitzer failed to make required payments on her credit card account, Comenity placed calls to her cellular phone regarding the delinquency, using an automated telephone dialing system.
According to TCPA, it is 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.” 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.”
Schweitzer sued Comenity for violating the TCPA. She alleged that during a conversation with a representative of Comenity that took place on Oct. 13, 2014, she revoked her consent to have Comenity make calls to her cellular phone using an automatic telephone dialing system. In addition, Schweitzer claimed that Comenity violated the TCPA by making over 200 automated calls to her cellular phone between October 2014 and March 2015.
During the call on October 13, Schweitzer complained about not being able to talk during work and about her phone ringing off the hook. In the earlier decision, the district court granted summary judgment in favor of Comenity, noting that Comenity “did not know and should not have had reason to know that [Schweitzer] wanted no further calls” by what she said during the October 13 conversation.
Given that the October 13 call was placed at 2:47 p.m., it is reasonable to infer, according to Judge Jordan, that Schweitzer was at work during that call, and that, in turn, makes it easier to figure out what she meant by “the morning” and “the work day.”
According to Jordan, a reasonable jury could find that Schweitzer partially revoked her consent to be called in “the morning” and “during the workday” during the October 13 phone call with a Comenity employee. As a result, Jordan reversed the earlier decision.