In Ford v. Bluestem Brands (decided on March 5, 2019 in the Southern District of New York), a federal court dismissed a lawsuit filed under the Telephone Consumer Protection Act (TCPA). The ruling is significant to online businesses because the court held that the consumer cannot unilaterally revoke the consent he gave when agreeing to the seller’s online terms and conditions.
Briefly stated, the dispute arose when a consumer opened an online account and received $300 in credit when he ordered a laptop computer. The consumer agreed to the seller’s terms and conditions which included consent to receive autodialed telephone calls that would otherwise be illegal under the TCPA. When the consumer failed to pay back the debt (claiming he never received the laptop), the seller commenced auto-dialed collection calls to him.
The consumer admitted he consented to receive the calls when he applied for the account. The consumer alleged he repeatedly told the seller that the prior consent was revoked and the seller should stop calling him, but the court disallowed that argument. The court ruled that, “under the TCPA, a party cannot ‘unilaterally’ revoke prior express consent to be contacted.”
In March 2017, the seller recognized the consumer’s revocation of consent in a letter, and it stopped all calls as soon as the letter was sent.
TAKEAWAY: When a consumer provides a business with consent to receive autodialed or pre-recorded calls as part of a business transaction, the consent becomes part of the contract and, like other contractual terms, a consent term cannot be changed unless both parties agree to do so, or if the contract provides the consumer the right to do so. Online businesses should be sure to build in such consent into their standard consumer transactions.
PartnerScott has focused on complex commercial litigation and arbitration involving advertising and marketing law, class action defense, administrative investigations, contractual disputes, consumer fraud, and business ...