District Court (Fla.) Distinguishes Reyes; Allows Oral Revocation of TCPA Consent

The parties disagree over whether the credit application and the retail installment contract, both signed as a condition of financing, are two separate agreements or a single contract. (Doc. 19 at 15–16; Doc. 36 at 11–13). Ally contends that if they are a single contract, then Patterson may not restrict Ally from calling him, absent a jointly signed agreement. (Doc. 19 at 16).  This argument is not persuasive. Even assuming arguendo that the two contracts are viewed in conjunction, a plain reading of the provisions belies Ally’s assertion. Patterson only explicitly consented to telemarketing calls, not debt-collection calls. (Doc. 36-4 at 1). Thus, looking within the four corners of the contract, Patterson’s putative attempts to orally revoke consent to debt-related communication fall outside the bounds of the contract’s “no oral changes” clause. Because TCPA-engendered consent—in the form of Patterson providing his telephone number—is beyond the scope of the contract itself, and because Patterson never attempted to orally change any contractual provision, the issue of whether the two contracts are functionally the same need not be addressed here.  Furthermore, courts in this Circuit construe the words “in the absence of any contractual restriction to the contrary” narrowly. The phrase was first recorded (and has never been expounded upon) in Osorio in 2014, one year before the FCC unequivocally stated that a caller may not limit the ways a called party may revoke his consent. See 30 FCC Rcd. at 7990 (taking place in 2015). Referring in part to the FCC’s statement that “[a] caller may not limit the manner in which revocation may occur” a court in this District noted that the agency’s 2015 “Order has the force of law and abrogates prior FCC Orders and case law on point.” Rodriguez v. DFS Servs., LLC, 8:15-cv-2601-T-30TBM, 2016 U.S. Dist. LEXIS 11494, at *6 (M.D. Fla. Feb. 16, 2016) (referencing 30 FCC Rcd. at 7990).  Since 2015, decisions from within the Circuit have favored a Gager-like, common-law approach to consent that permits oral revocation even in the presence of a contract. See, e.g., Target Nat’l Bank v. Welch, 8:15-cv-614-T-36, 2016 LEXIS 38635, at *14 (M.D. Fla. March 24, 2016) (stating that “[t]he fact that [the plaintiff] entered into a contractual relationship with [the defendant] did not exempt [the defendant] from the TCPA’s requirements.”). In a scenario factually similar to the instant case, a vehicle-financing plaintiff signed a provision that permitted the defendant to call “in the event of default or other need to make contact with [her] during the term of the account being open.” Smith v. MarkOne Fin. LLC, 3:13-cv-933-J-32MCR, 2015 LEXIS 11803 at *2 (M.D. Fla. Feb. 2, 2015). The issue in Smith was not whether consent was contractually granted (it was), but whether, despite contractual consent, oral revocation occurred. See id. at *9 (explaining that the defendant “asserts that it is entitled to summary judgment on the TCPA claim because [the plaintiff] expressly consented to being called. Prior express consent is an affirmative defense to a TCPA claim. That consent can, however, be revoked, either orally or in writing.”) (internal citations omitted). This Court, therefore, finds nothing in either the TCPA or the text of the contract(s) that precludes Patterson from orally revoking his consent to be contacted.