Second Circuit Refuses to Rehear Consent Revocation Case

TCPA Connect

In the TCPA lawsuit, Reyes v. Lincoln, filed in 2015, Reyes leased a new luxury Lincoln and provided his cell phone number in his lease application. The application included a provision that Reyes “expressly consent[ed]” to contact via “prerecorded or artificial voice messages, text messages, . . . and/or automatic telephone dialing systems.” When Reyes stopped making payments, Lincoln called Reyes many times to cure his default. Reyes claimed he mailed Lincoln a letter demanding that all calls to his cell phone cease, but the calls continued. In June, in what is one of the most defense-favorable Telephone Consumer Protection Act (TCPA) decisions of 2017, the Second Circuit ruled that consent to be called, which is part of a bargained-for exchange, cannot be revoked.

In July, Reyes asked the full Second Circuit to rehear his case, arguing that the panel decision is contrary to established law, particularly prior decisions by the Third and Eleventh Circuits, and the FCC. Reyes also contended that the panel’s decision was predicated on an erroneous assumption that the TCPA allows parties to contract around the regulatory consent requirements.

Last week, the Second Circuit declined to hear the case en banc, issuing a one-page order denying the request without further comment.

Why it matters: The Reyes decision could prove to be a strong weapon in the TCPA defense arsenal. The en banc court’s refusal to rehear the case adds some additional weight to the decision. 

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