Third Circuit says cell phone customers may block robocalls

By Jessica M. Karmasek | Aug 23, 2013

PHILADELPHIA (Legal Newsline) -- The U.S. Court of Appeals for the Third Circuit ruled Thursday that cell phone customers may revoke their prior consent to be "robocalled" on their cell phones.

A three-judge panel of the court -- judges Julio Fuentes, Patty Shwartz and Jane Roth -- also said in Gager v. Dell Financial Services LLC that there is no time limit on the right.

The Third Circuit overturned a prior ruling in the case by the U.S. District Court for the Middle District of Pennsylvania.

In December 2007, plaintiff Ashley Gager applied for a line of credit from Dell to purchase computer equipment. The credit application required that she provide her home phone number.

Gager listed her cell phone number in its place on the application. In doing so, she neither stated that the number was for a cell phone, nor did she indicate that Dell should not use an automated telephone dialing system to call her at the number she provided.

Dell granted Gager a line of credit, which she used to purchase several thousand dollars worth of equipment. Gager subsequently defaulted on her debt.

Dell then began using an automated dialing system to call Gager's cell phone, leaving pre-recorded messages on her voicemail concerning the debt.

Soon after, Gager sent a letter to the company, listing her phone number and asking Dell to stop calling it regarding her account. The letter did not indicate that the number was for a cell phone, however.

Gager alleged that after receiving her letter, Dell called her cell phone nearly 40 times over a three-week period, again using its automated dialing system.

Gager filed a complaint in Wayne County Common Pleas Court.

The company's principal argument is that the Telephone Consumer Protection Act's silence as to whether a consumer may revoke his or her prior express consent to be contacted via an auto-dialing system supports the conclusion that the right does not exist.

The Third Circuit disagreed.

"Congress has passed several other remedial consumer protection statutes -- most notably the 1977 amendments to the Fair Debt Collection Practices Act (FDCPA), the CAN-SPAM Act of 2003, and the Junk Fax Protection Act of 2005 -- containing statutory avenues for a consumer to stop unwanted communications and solicitations," Roth wrote in the court's 18-page opinion.

"The passage of these statutes shows that -- both before and after the passage of the TCPA in 1991 -- Congress was willing and able to create revocation rights in consumer protection statutes."

The court said its decision also is in line with the purpose of the TCPA.

"The TCPA is a remedial statute that was passed to protect consumers from unwanted automated telephone calls," Roth wrote. "Because the TCPA is a remedial statute, it should be construed to benefit consumers."

The case was remanded to the district court.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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