Author Topic: 11th Circuit: Partial Revocation of Consent OK  (Read 535 times)

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Re: 11th Circuit: Partial Revocation of Consent OK
« Reply #1 on: August 17, 2017 10:46:14 PM »
There are SEVERAL very interesting things in this Opinion.

First - the Court specifically states:

"In her application, she provided her cellular phone number to Comenity, and the district court concluded that she had initially consented to allow Comenity to call her on this number. See D.E. 82 at 5. Because no one challenges that conclusion on appeal, we assume without deciding that it is correct."

This is now the THIRD time in the last 3 years that the 11th Circuit has gone out of its way in it's Opinions to say the exact same thing.  That the ONLY reason they are going along with the FCC's flawed determination that the TCPA allows for implied consent along with, what the statute actually dictates, express consent - is because no one on appeal ever questions it.

They did the exact same thing in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014):

"We must still decide how one obtains the “prior express consent” of the called party. For purposes of this appeal only, we accept as valid the FCC’s regulation to the effect that “autodialed . . . calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” In re Rules & Reg. Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 559 (2007). We do so because counsel for Betancourt and Osorio have disclaimed any intent to challenge the regulation."

The ONLY reason the 11th Circuit (and every other Circuit) accepts the FCC's interpretation is because no one ever challenges it in order for them to disagree with it!

They also go on to state that, this time agreeing with the FCC's latest Orders - that under the TCPA, consent, once obtained - is NOT unlimited; and that the scope of one's consent is dependent upon the circumstances surrounding the consent.


"At common law, consent is a willingness for certain conduct to occur. See Restatement (Second) of Torts § 892A(1) (1979); William Prosser, Law of Torts § 18, at 101 (4th ed. 1971). Such willingness can be limited, i.e., restricted. See Restatement (Second) of Torts § 892A(3) & cmt. g. As one treatise has put it, a person “may limit her consent as she likes, consenting to one act but not another, or to acts at one time but not another, or to acts under some conditions but not others.” Dan Dobbs et al., 1 The Law of Torts § 108, at 328 (2d ed. 2011). So, if an actor exceeds the consent provided, the permission granted does not protect him from liability for conduct beyond that which is allowed. See Restatement (Second) of Torts § 892A(4) & cmt. h. Cf. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 529 (E.D. Pa. 1982)."


"The “meaning of language is inherently contextual,” Moskal v. United States, 498 U.S. 103, 108 (1990), and “the scope of consent, like its existence, depends heavily upon implications and the interpretation of circumstances.” Dobbs, The Law of Torts § 108, at 328–29."

Meaning that just giving someone your phone number does NOT mean that you gave them express consent, as required under the TCPA, to be called with an autodialer, etc. - the scope of the consent depends upon the circumstances in which it was given.

They also went on to say:

"See Watkins, 704 F.2d at 582 (“It is the task of the trier of fact [jury] to determine the scope of consent and to decide whether and to what extent the interception exceeded that consent.”)."


"The “issue of consent is ordinarily a factual [jury] issue,” Thompson v. Louisiana, 469 U.S. 17, 23 (1984)"

Meaning that juries, not judges, are tasked with decided if there was consent (prior express) or not.

This is a GREAT Opinion.