In Skinner v. Bluestem Brands, Inc., 2015 WL 4135269  (S.D.Miss.,2015), Judge Reeves denied summary judgment to a creditor making calls to collect a debt, rejecting the argument that the credit agreement superseded revocation rights under the TCPA.

In 2012, Barbara Skinner opened a line of credit with Fingerhut, a catalog sales company, to purchase goods from Fingerhut. In so doing she agreed to written terms which permitted Fingerhut to call her cell phone using an automated dialing system. In 2013, Skinner fell behind on her payments, allegedly because one of the goods she purchased, a tablet-style computer, was damaged on arrival and Fingerhut had repeatedly failed to send her a return shipping label. Her non-payment triggered a series of autodialed phone calls.  On January 15, 2014, Skinner asked Fingerhut to stop calling her cell phone. As she explained to the customer service agent, “I mean, they’re calling five and six or seven times a day, Saturdays and Sundays and everything and when I answer, there’s nothing but static and it just hangs up…. I don’t want you calling my cell phone like this.”  Between that request and the end of March 2014, however, Fingerhut called Skinner’s cell phone 307 times. Of those calls, either 161 or 163—the parties do not agree—were dialed by automatic means. Fingerhut often autodialed Skinner several times a day.   Skinner continued to ask Fingerhut’s agents to stop calling her cell phone. Transcripts show that she made such requests on March 8, 2014 (“Why are you calling my cell phone? I asked you all not to call my cell phone.”) and March 16, 2014 (“I told them not to call my cell phone and they keep calling my cell phone…. If I’m asking you not call my cell phone, why are you still calling it then? … Now, I’m going to remind you, again, my cell phone, do not call my cell phone and you be blessed.”). She again complained that she was receiving calls on Sunday.  In response, Fingerhut’s agents told her that there were “no notes” memorializing her earlier do-not-call requests, that she could not stop Fingerhut’s calls until she paid her debt, that she had to call the customer service department to get a return shipping label for the tablet, and (somewhat incongruously) that she could not get a return shipping label from customer service until she paid her debt.  When do-not-call requests are made, Fingerhut’s written policy requires agents to tell the customer that the company will “suppress all future phone calls” and will instead send future communications in writing. Despite that policy, Fingerhut’s corporate representative testified in a deposition in this case that its agents in fact have discretion to dishonor do-not-call requests.

The District Court found that the Defendant could not contract away revocation rights under the TCPA.

Fingerhut argues that Skinner’s revocation of consent was ineffective because of the language in the credit agreement. The argument is unpersuasive for a few reasons.  First, Fingerhut has not pointed to any legal authority giving parties permission to contract around the TCPA. If they could, one imagines that every company in the nation—from Dell Financial and State Farm Bank, to every student loan provider, to every catalog sales company—would amend their contracts to require customers to waive every right their customers currently have. The lack of authority suggests that no such race to the bottom is permitted. Second, Fingerhut has not pointed to any language in its contract with Skinner where she actually waives her revocation rights under the TCPA. Fingerhut’s argument assumes that the above-quoted contractual term forever gave it permission to autodial her cell phone. But the plain language of the contract does not address whether Skinner could or could not revoke her consent to receive autodialed calls to her cell phone. The contract is silent on that issue.  Third, the Court is not persuaded that one can “read into” this language an effective, permanent revocation of rights under the TCPA. . .Finally, although there is no circuit precedent exactly on point, the Third Circuit’s principal TCPA case suggests that Skinner’s contractual agreement does not override her rights under federal law . . .”The fact that Gager entered into a contractual relationship with Dell did not exempt Dell from the TCPA’s requirements. As discussed above, she retained the right to revoke her prior express consent.”  Gager, 727 F.3d at 273–74 (emphasis added). Fingerhut argues that Gager is distinguishable because the contractual language was different. But the language of our credit agreement speaks for itself.