27. 27 TCPA & the FDCPA Revoking Prior Express Consent Revocation of Consent- Writing Required Where FDCPA Applies Some courts hold revocation of consent in debt collection by consumer is governed by the FDCPA, not the TCPA, and must be in writing because it is a cease & desist request per 1692c(c). Starkey v. Firstsource Advantage, 2010 WL 2541756 (W.D.N.Y. Mar. 11, 2010); Cunningham v. Credit Management, L.P., 2010 WL 3791104 (N.D. Tex. Aug. 30, 2010) Moore v. Firstsource Advantage, LLC, 2011 U.S. Dist. LEXIS 104517 (W.D.N.Y. Sept. 15, 2011); Moltz v. Firstsource Advantage, LLC, 2011 U.S. Dist. LEXIS 85196 (W.D.N.Y. Aug. 1, 2011) Revocation Oral Ok - No Writing Required Even When FDCPA applies. Other courts say oral revocation is ok and no writing required. Gutierrez v. Barclays Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011) (holding Starkey does not address whether a called party may orally revoke its prior express consent to receive certain automated calls); See Adamcik v. CCS, 2011 U.S. Dist. LEXIS 150107 (W.D. Tex 2011) (holding TCPA and FDCPA are two separate statutes; because TCPA silent on how consent can be revoked, oral revocation is effective).
28. 28 TCPA & the FDCPA Revoking Prior Express Consent Timing of Revocation Revocation at Time Application Executed Letter by debtor to creditor does not revoke prior express consent to call cell phone because revocation must be made at time person "knowingly release(s)" her telephone number. Gager v. Dell Fin. Servs., LLC, 2012 U.S. Dist. LEXIS 73752 (M.D. Pa. May 29, 2012) (hearing on appeal held on 5/13/13 ). Court held that FCCs 1992/2008 Orders imply that the "instructions to the contrary" to revoke consent must be made at time person "knowingly releases " her telephone number. (Id. at *15,16) Saunders v. NCO Fin. Sys., 2012 U.S. Dist. LEXIS 181174 (E.D.N.Y. Dec. 19, 2012) (following Gager and stating when consumer opens an account he cannot complain about being called at number given); Cardoso v. Suncoast Schs., FCU, 2012 U.S. Dist. LEXIS 173168 (M.D. Fla. Dec. 6, 2012) (acknowledging argument that a verbal revocation would be insufficient to revoke "prior express consent" under the TCPA) Kenny v. Mercantile Adjustment Bureau, LLC, 2013 U.S. Dist. LEXIS 62415 (W.D.N.Y. Apr. 29, 2013)(holds under either Starkey or Gager line of cases, consent was not revoked)
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