In Few v. Receivables Performance Management, 2018 WL 3772863, at *2–3 (N.D.Ala., 2018), Judge Owen Bowdre granted summary judgment to a debt collector based on Reyes.
In this case, Ms. Few contends that, although she may have initially provided DISH— and, by extension, Receivables, which acted as DISH’s agent for the purpose of debt collection—with consent to call the 0268 number, she revoked that consent orally on April 27, 2017. Receivables, however, responds that Ms. Few could not unilaterally revoke her prior and express consent because she made it as part of a bargained-for exchange. The court agrees. Courts should evaluate the revocation of consent under § 227(b)(1)(A) by considering “the common law concept of consent.” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014). These common law concepts allow the unilateral revocation of consent, but only “in the absence of any contractual restriction to the contrary[.]” See id. And Ms. Few does not dispute that she contractually agreed to allow Receivables to make the phone calls at issue. The Eleventh Circuit has not spoken further on how a contractual agreement bears on revocation of consent under § 227(b)(1)(A). But the Second Circuit, applying the same common-law concepts of consent to § 227(b)(1)(A), has persuasively reasoned that a party who grants consent to be contacted within an otherwise-valid contractual provision cannot thereafter unilaterally revoke her consent. Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51, 56-57 (2d Cir. 2017). The Second Circuit stated: “We agree with the district court that the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent, and we decline to read such a provision into the act….It is black-letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.” Id.; accord Kinmon v. J.P. King Auction Co., Inc., 276 So. 2d 569, 571 (Ala. 1973) (“Unilateral grumbling cannot modify a bilateral contract.”). Ms. Few gave prior express consent to Receivables to make the calls and, because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent. Receivables’s phone calls to Ms. Few, therefore, did not violate the TCPA. See 47 U.S.C. § 227(b)(1)(A). Ms. Few asserts that the call records provided by Receivables “suggest that [it] contacted her on another line [that] was not included in” the contract with DISH. (Doc. 18 at 9). Yet Ms. Few fails to support her assertion with any citation and this court, having reviewed the call records, cannot identify any “suggestion” that Receivables made any calls to a phone number other than the 0268 number, which Ms. Few provided to DISH to use for debt-collection purposes as part of her agreement to receive DISH’s services. . . . So even taking Ms. Few’s view of the facts as true, including her allegation that Receivables used an automated dialer and her description of the April 27, 2017, attempted revocation of consent, Ms. Few’s TCPA claims fail as a matter of law. See 47 U.S.C. § 227(b)(1)(A). The court will GRANT Receivables’s motion for summary judgment and will ENTER SUMMARY JUDGMENT in Receivables’s favor on Ms. Few’s TCPA claims.