What Happens to Faxed Revocation of Consent?

Last week a federal judge in New Jersey addressed the thorny issue of whether a consumer’s “revocation of consent” met the FCC's definition of “a reasonable method” of revocation of consent under the TCPA.  The case is Martinez v. TD Bank USA, N.A., and Target Corporation (Case No 15-7712, U.S. District Court, New Jersey.)

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A copy of the opinion can be found here. (Editor’s Note: The court’s full opinion discusses a number of issues. This article is only addressing the TCPA revocation of consent issue.) 

In their 2015 order, the FCC stated that “consumers have a right to revoke consent, using any reasonable method including orally or in writing.” Per the FCC, in order for a called party to revoke his or her consent, “the TCPA requires only that the called party clearly express his or her desire not to receive further calls.” (In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991.) In this case, the Honorable Jerome B. Simandle was presented a set of facts that required him to determine whether, as a matter of law, an attempt to revoke consent was, in fact, a reasonable method.

Background

TD Bank is a large national bank chain that (among other activities) “owns and underwrites a portfolio of credit card accounts.” The Target credit card portfolio was purchased by TD Bank in March of 2013.  Target is a corporation headquartered in Minnesota and doing business in New Jersey and nationwide, and remained the servicer of the credit card portfolio purchased by TD Bank.

Plaintiff Charlene Martinez, opened a Target credit card account in 2007. When Plaintiff opened the account, she agreed that Target or its agents were permitted to call her, including her mobile telephone, regarding her account, and that they could make such calls using an automated dialing/announcing device. 

Plaintiff obtained the cell phone number at issue, ending in -2420, in 2011. When she updated her account information with Target on its website on September 17, 2012, she provided this number as her “home” telephone number and received a disclosure that stated that, by providing her phone number on that page, she consented to receiving, at that phone number, autodialed and prerecorded calls from Target or on Target’s behalf. Plaintiff then clicked “Submit” after that disclosure was provided.

The record also showed that throughout the relationship, plaintiff had numerous contacts with Target through their web site, though Target’s automated phone system and on the phone with live customer service agents.

Plaintiff’s Target credit card account became delinquent sometime in late 2014.  Between August 29, 2014 and April 15, 2015, Target placed 165 calls to Plaintiff’s cell phone regarding the delinquent account.

Plaintiff alleges that on April 10, 2015, plaintiff’s bankruptcy attorney, Daniel Shay, faxed cease-and-desist letters to two fax numbers, “revoke[ing] any prior express consent that may have been given [by Plaintiff or her husband] to receive telephone calls, especially to Clients’ cellular telephones, from an Automated Telephone Dialing System, or a pre-recorded voice” as outlined in the TCPA.” The letters were faxed to two numbers: (856) 533-1138 and (302) 683-6889. The transmission report for the faxes indicated that the transmission for each was “OK.” 

This is where the case gets interesting.  

Defendants claim they “have no record of receiving the cease and desist letters.” 

The (856) 533-1138 number receives faxes for TD Bank, N.A.’s Business Solutions group. That TD entity “is a different entity” than the one related to the Target credit card portfolio. 

The (302) 683-6889 number receives faxes for TD Bank USA, N.A. as well as for TD Bank, N.A.; however, Defendants note that “the number was not provided as a method to communicate regarding the Target REDcard.” 

Target placed four calls to the -2420 number from April 11, 2015 to April 15, 2015. Target stopped calling Plaintiff after April 15, 2015, when a Target representative reported in Target’s account system that Plaintiff had retained a bankruptcy attorney.

The Issues

Defendants argued that they are entitled to summary judgment on Plaintiff’s claim that they violated the TCPA because there is no genuine dispute of material fact that Plaintiff provided her prior express consent to receiving autodialed calls to her cell phone, and she did not receive any calls from Defendants after learning of her representation by an attorney. 

Plaintiff conceded that she provided consent for Defendants to call her using an autodialer on September 17, 2012. However, she argued that there is a genuine dispute of material fact as to whether Defendants continued to call her after she revoked that consent: she contends that she has submitted sufficient evidence for a reasonable finder of fact to conclude that she revoked her consent to be called on April 10, 2015 via the cease-and-desist letters faxed by her bankruptcy attorney. 

As noted above, plaintiff received four calls from April 11, 2015 to April 15, 2015. It is those 4 calls that became the crux of the plaintiff’s TCPA claim. 

The Court’s Opinion

Judge Simandle reviewed and discussed the FCC’s 2015 order and several TCPA cases involving revocation of consent. Judge Simandle then condensed the TCPA issue to the following: 

“The parties appear to agree that the substance of the cease-and-desist letters, faxed by Plaintiff’s bankruptcy attorney on April 10, 2015, would have sufficed to give Defendants reason to know that Plaintiff was withdrawing her consent to be called. The sole dispute is as to whether the faxing of the letters to the fax numbers in question, where Defendants submit that the evidence is clear that they never received either letter, was a reasonable method of informing Defendants that Plaintiff was revoking her consent.” (Emphasis added by insideARM.) 

Simandle summarized the defendants’ position: 

“The crux of Defendants’ argument that the faxing of the cease-and-desist letters to the two numbers on April 10 was not a reasonable method of revoking Plaintiff’s consent is that, in the first instance, Target was the servicer of Plaintiff’s credit card account and Target was not one of the parties faxed, and second, neither number that was faxed was one that was provided for consumers to use to communicate about their Target credit card accounts. 

Furthermore, Defendants argue that they cannot be said to have had reason to know that Plaintiff revoked her consent on April 10, 2015 when they assert that they never received the revocation, their business records do not reveal having received the faxes, and Plaintiff cannot point to any evidence that they received the faxes beyond the numbers themselves and the fact that the faxes marked their transmission as “OK.”

Judge Simandle then determined: 

“The Court finds that Plaintiff has not produced sufficient evidence to allow a reasonable finder of fact to conclude that she revoked her consent on April 10, 2015, thus allowing her claim under the TCPA for the four calls placed from April 11, 2015 to April 15, 2015 to go forward. A reasonable finder of fact could not conclude that faxing a letter to a fax number only known to be associated with one party that is simply connected to the credit card account at issue, and has never serviced that account, cannot constitute a reasonable method of revoking consent to be contacted regarding that account. 

For those reasons, the Court finds that Plaintiff has not put forth sufficient evidence to allow a reasonable finder of fact to conclude that she used a reasonable method to communicate to Defendants, on April 10, 2015, revocation of her consent to be called. Given that, her conceded prior express consent was still in effect, and Plaintiff cannot prevail on her claim that the four calls from April 11, 2015 to April 15, 2015, constituted violations of the TCPA. Accordingly, the Court will grant summary judgment to Defendants as to the TCPA claim.” 

insideARM Perspective 

As noted above, this case involved other issues that we did not address in this article. However, the issue of whether a party used a “reasonable method” of revoking prior consent is going to continue to be a hot topic in TCPA litigation. In this case, under the facts presented, a federal judge in New jersey determined that there was no valid revocation of consent.  But, the issue remains very cloudy and fact specific. 

The irony here is that over the past two years TCPA experts have often used Target or Walmart as an example when discussing revocation of consent. The extreme example often used is: If a person with a Target credit card walked into a local Target store, made purchases, and just as the person was leaving the checkout line said to the cashier, “By the way, I am hereby revoking my consent to be called on my cell phone regarding my Target account” ...is that a valid revocation of consent? 

This case provides some guidance, but the issue remains blurry and fact specific.