Court Won’t Let Car Lessee Revoke Robocall Consent

MANHATTAN (CN) – Denying damages to a man who faced relentless debt-collection calls, the Second Circuit ruled Thursday that he could not take back the consent he gave to robocalls when he signed his car lease.

Alberto Reyes signed off on automated telephone calls as a condition of leasing a Lincoln MKZ from a Ford dealership back in 2012. He came to regret that consent a year later when he defaulted on payments.

Disputed the amount owed, Reyes tried in vain to revoke his consent. When the calls kept coming, he sued on Long Island for damages under the Telephone Consumer Protection Act.

Lincoln’s attorney confirmed during testimony that the company called Reyes 141 times with a customer representative on the line, and called him with prerecorded messages an additional 389 times.

A federal judge ruled for Lincoln at summary judgment on the 2015 complaint, however, and the Second Circuit affirmed Thursday, saying the TCPA does not permit revocation when consent is provided as consideration in a binding contract.

“We agree with the district court that the TCPA does not permit a party who agrees to be contacted as part of a bargained‐for exchange to unilaterally revoke that consent, and we decline to read such a provision into the act,” U.S. Circuit Judge John Walker wrote for a three-person panel.

Distinguishing between consent in contract law and in tort law, the ruling notes that “consent … which is not given in exchange for any consideration, and which is not incorporated into a binding legal agreement, may be revoked by the consenting party at any time.”

“Reyes’s consent to be contacted by telephone, however, was not provided gratuitously; it was included as an express provision of a contract to lease an automobile from Lincoln,” the ruling continues. “Under such circumstances, ‘consent,’ as that term is used in the TCPA, is not revocable.”
Reyes failed to sway the court on his point that that his consent to being contacted was not an “essential term” of his lease agreement with Lincoln.

“This argument is meritless,” Walker wrote. “In contract law, ‘essential terms’ are those terms that are necessary in order to lend an agreement sufficient detail to be enforceable by a court. For example, a contract for the sale of goods must contain terms such as the quantity of goods to be sold and the price at which they will be purchased. But a contractual term does not need to be ‘essential’ in order to be enforced as part of a binding agreement. It is a fundamental rule of contracts that parties may bind themselves to any terms, so long as the basic conditions of contract formation (e.g., consideration and mutual assent) are met.”

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