To robocall or not to robocall

2017-06-30

The Telephone Consumer Protection Act (TCPA) allows consumers to sue companies who call via an automatic dialing system without prior consent. Many lawsuits against creditors and collection agencies revolve around the specific issue of consent when it comes to "robocalls."

A recent case involved Alberto Reyes, the plaintiff, who had leased a car through Ford Motor Co.'s Lincoln Automotive Financial Services. The application signed by Reyes had a provision that allowed Lincoln to make contact calls as part of the overall agreement. When Reyes stopped making payments, Lincoln responded with calls to collect the past due debt.

Upon hearing from Lincoln, Reyes requested that they stop calling him. Lincoln refused and the pursuit of the amount he owed continued via automated phone calls.

Reyes responded with a lawsuit against Lincoln over allegations that they violated the TCPA. The trial court ruled that Reyes' consent was part of a contract to lease a car from Lincoln. As part of that agreement, it simply could not be revoked.

Reyes appealed to the U.S. Court of Appeals for the Second Circuit.

The appellate court agreed with the lower court and ruled that Reyes agreed to a valid contract containing the disputed clause. He simply cannot go back on that agreement because the language that permits phone calls could not have been created without it.

The court did admit that they are sensitive to the argument of businesses inserting consent clauses that may undermine the TCPA. However, that concern is based more on public policy considerations than legal ones. Resolving the problems that arise over robocall permission as part of contracts should come from the legislature.

Posted on Business Litigation