In Franklin v. Navient Corp., Civil Action No. 17-1640-RGA, 2019 U.S. Dist. LEXIS 150902, at *14-19 (D. Del. Sep. 5, 2019), the District Court declined to follow the Second Circuit’s Reyes decision.
The Court turns next to the calls placed [*15] to Plaintiff prior to the November 2015 TCPA amendment. The evidence of record indicates that in each of Plaintiff’s deferment requests, he provided his 3733 number and gave express authorization consenting to automated dialing equipment or artificial or prerecorded voice or text messages. Although Plaintiff gave his authorization to allow Defendants to contact him , there is a genuine issue of material fact as to whether he withdrew or revoked that consent. Plaintiff contends that he did , while Defendants argue that Plaintiff may not unilaterally do so. It is permissible under the TCPA to place a call to a cellular phone using an automated telephone dialing system or artificial or prerecorded voice if the caller has the prior express consent of the called party. See 47 U.S.C . § 227(b)(1 )(A) . Defendants rely upon Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017) , to support their position that Plaintiff could not unilaterally revoke consent to be contacted under the TCPA. In Reyes, the Second Circuit stated, “The TCPA does not expressly permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent,” and declined to “read such a provision into the act. ” Id. at 56. The Reyes Court held that under the common law of contracts, it “is clear that consent to another’sactions can become irrevocable when it is provided in a legally binding agreement … in which case any attempted termination is not effective.” Id. at 57 (internal quotations and citations omitted) . The Reyes Court founds that the plaintiff had not “provided [his consent] gratuitously as it was included as an express provision of a contract” and held that “[u]nder such circumstances, ‘consent,’as that term is used in the TCPA, is not revocable. ” Id. The Second Circuit distinguished between the kind of consent granted in the case before it, and consent “not given in exchange for any consideration , which is not incorporated into a binding legal agreement. ” Id. at 57 . It held that the latter kind of consent “may be revoked by the consenting party at any time. ” Whatever the merits of Reyes,Third Circuit precedent is to the contrary. In Gager v. Dell Fin . Services, LLC,727 F.3d 265, 268 (3d Cir. 2013), the Court of Appeals held that, based upon common law principles, the TCPA affords a consumer the right to revoke his prior express consent to be contacted on his cellular phone via an autodialing system and there is no temporal limitation on that right. See also Daubertv. NRA Group, LLC, 861 F.3d 382, 390 (3d Cir. 2017) (“we reaffirm that Congress ‘didnot [*17] intend to depart from the common law understanding of consent.”‘). The Gagercourt explained that under the common law understanding of consent, the basic premise of consent is that it is “given voluntarily” and under common law consent may be withdrawn. Gager,727 F.3d at 270-71 . In addition , the Gager court rejected the creditor’s position that “a creditor will want to know in advance whether a credit applicant will consent to automated phone calls and that this knowledge is part of the ‘consideration’that the applicant offers in support of her application.” Id.at 273. The Third Circuit explained, “Although [the creditor] is correct that the level of contact that a debtor will consent to may be relevant to the negotiation of a line of credit, the ability to use an autodialing system to contact a debtor is plainly not an essential term to a credit agreement.” Id.at 273-74 . The Third Circuit explicitly rejected the contract law argument that the Second Circuit accepted in Reyes . Id. Hence, under Third Circuit precedent, Plaintiff may unilaterally withdraw or revoke his express consent under the TCPA. While it is undisputed that Plaintiff consented when he executed deferment requests, forbearance requests, and updated [*18] his information, in dispute is whether Plaintiff revoked that consent and when he did so . In his affidavit with its supporting telephone log, Plaintiff states that he instructed Defendants to stop calling his cellular phone and for them to communicate only in writing . Plaintiff points to two letters to support his position that he asked Defendants to communicate only in writing (see D.I. 37 at 7, 11 (citing Exh. E (D.I. 37-6) , letters dated 18 March 2014, and 18 March 2015)) , but a review of the letters reveals that they make no reference to telephone calls . Nor do they ask Defendants to stop calling . Instead, they speak to written verification of Plaintiff’s debt. Defendants contend that Plaintiff’sevidence of dates consists of hearsay that would be inadmissible at trial and that his affidavit is self-serving . Defendants argue that their business records show when the calls were made to Plaintiff’s3733 number and there is no evidence to the contrary. The “Supreme Court [has] rejected the view that the non-moving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment. ” J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990). “[H]earsay evidence . .. may be considered if the out-of-court declarant could later present the evidence through direct testimony, i.e. , in a form that ‘would be admissible at trial. “‘ Id.There is no indication that Plaintiff would not be able to testify at trial that he orally told Defendants’representatives not to contact him .