Gager v. Dell Fin. Servs., LLC
| Decision Date | 22 August 2013 |
| Parties | ASHLEY GAGER, Appellant v. DELL FINANCIAL SERVICES, LLC |
| Court | U.S. Court of Appeals — Third Circuit |
PRECEDENTIAL
On Appeal from the United States District Court
for the Middle District of Pennsylvania
Before: FUENTES, SHWARTZ and ROTH, Circuit Judges
Cary L. Flitter, Esquire (Argued)
Andrew M. Milz, Esquire
Flitter Lorenz, P.C.
Carlo Sabatini, Esquire
Sabatini Law Form, LLC
Counsel for Appellant
Anthony L. Gallia, Esquire (Argued)
James G. Welch, Esquire
Duane Morris LLP
Counsel for Appellee
I. Introduction
Ashley Gager brought suit against Dell Financial Services alleging that Dell violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), by using an automated telephone dialing system to call her cellular phone after she revoked her priorexpress consent to be contacted. Gager contends that the District Court improperly dismissed her complaint for failure to state a claim on the theory that she could not revoke her consent once it was given. We agree with Gager. Therefore, for the reasons that follow, we will reverse the judgment of the District Court and remand this case for further proceedings consistent with this opinion.
II. Background
Around December 2007, Gager applied for a line of credit from Dell to purchase computer equipment. The credit application required that she provide her home phone number. Gager listed her cellular phone number in that place on the application. In doing so, however, she neither stated that the number was for a cellular phone, nor did she indicate that Dell should not use an automated telephone dialing system to call her at the number she provided.
Dell granted Gager a line of credit, which she used to purchase several thousand dollars worth of computer equipment. Gager subsequently defaulted on her debt. Dell then began using an automated telephone dialing system to call Gager's cellular phone, leaving pre-recorded messages on her voicemail concerning the debt. In December 2010, Gager sent a letter to Dell, listing her phone number and asking Dell to stop calling it regarding her account. The letter did not indicate that the number was for a cellular phone. Gager has alleged that, after receiving her letter, Dell called her cellular phone approximately forty times over the three week period, using an automated telephone dialing system.
Gager filed a complaint in the Court of Common Pleas of Wayne County, Pennsylvania, asserting violations of 47U.S.C. § 227(b)(1)(A)(iii), the TCPA's provision banning certain automated calls to cellular phones. Gager alleged that, after receiving her letter, Dell had an obligation under the TCPA to cease all autodialed calls to her cellular phone because she had withdrawn her prior express consent to be contacted at that number via an automated dialing system. The case was subsequently removed to the Middle District of Pennsylvania under 28 U.S.C. § 1441.
Dell moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The District Court granted the motion, holding that Gager could not revoke her prior express consent for three reasons. First, the court concluded that the lack of language in the TCPA providing for "post-formation revocation of consent" weighed in favor of finding that no such right exists. Gager v. Dell Fin. Servs., LLC, No. 11-cv-2115, 2012 WL 1942079, at *6 (M.D. Pa. May 29, 2012). Second, the District Court held that, although Gager was entitled to give "instructions to the contrary" as to whether Dell could use an automated telephone dialing system to call her, those instructions had to be "provided at the time [she] . . . 'knowingly release[d]' her telephone number" to Dell. Id. Finally, the District Court determined that, because calls regarding debt collection are not subject to the TCPA and because Dell's calls were for debt collection purposes, Gager failed to allege a violation of the TCPA. Id. Gager appealed.
III. Standard of Review
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). We exercise plenary review over an order granting a Rule 12(b)(6) motion. W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 (3d Cir. 2010). We also exercise plenary review over issues of statutory interpretation. United States v. Manzella, 475 F.3d 152, 156 (3d Cir. 2007).
IV. Discussion1
We are asked to resolve two issues today: (1) whether the TCPA allows a consumer to revoke her "prior express consent" to be contacted via an automated telephone dialing system on her cellular phone and (2) if a revocation right exists, whether there is a temporal limitation on that right. Neither the Third Circuit nor any other appellate court has addressed either issue. Our analysis of the scope of the TCPA is guided by the text of the statute, the FCC's interpretation of the statute, the statute's purpose, and our understanding of the concept of consent as it exists in the common law. See Restrepo v. Att'y Gen. of U.S., 617 F.3d 787, 793 (3d Cir. 2010). Considering all of these factors, we conclude that Gager has stated a plausible claim for relief because (1) the TCPA affords her the right to revoke her prior express consent to be contacted on her cellular phone via an autodialing system and (2) there is no temporal limitation on that right.
Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls. See Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 745 (2012).The relevant portion of the TCPA provides that it is unlawful for any person:
to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.
47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Notably, the statute does not contain any language expressly granting consumers the right to revoke their prior express consent.
Congress authorized the Federal Communications Commission (FCC) to implement rules and regulations enforcing the TCPA. 47 U.S.C. § 227(b)(2). Under its rule-making authority, the FCC has stated that autodialed calls—to both cellular phones and land-lines—are lawful so long as the recipient has granted "permission to be called at the number which they have given, absent instructions to the contrary." In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992) (emphasis added) (hereinafter the 1992 Ruling). The 1992 Ruling, however, left unresolved the question of whether instructions to the contrary may be given after a consumer has granted her prior express consent and, if so, whether there is any temporal limitation on the right to revoke prior express consent.
The most significant guidance from the FCC on the issue of revocation of prior express consent comes from a decision issued after the District Court dismissed Gager's claim. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc., 27 FCC Rcd. 15391 (Nov. 26, 2012) (hereinafter SoundBite). In SoundBite, the FCC issued a declaratory ruling to resolve the issue of whether "a consumer's prior express consent to receive text messages from an entity can be construed to include consent to receive a final, one-time text message confirming that such consent has been revoked." Id. at 15395 ¶ 9. The FCC concluded that a text message confirming an opt-out request is permissible under the TCPA.2 Id. at 15394 ¶ 7, 15398 ¶ 15.
Although the FCC's analysis in SoundBite was directed at the use of an automated dialing system to confirm an opt-out request, rather than whether an opt-out right exists, the decision indicates that the FCC supports Gager's argument that a consumer may revoke her prior express consent once it is given. The decision in SoundBite starts by noting that "neither the text of the TCPA nor its legislative history directly addresses the circumstances under which prior express consent is deemed revoked." Id. at 15394 ¶ 8. The FCC then noted "that consumer consent to receive . . . messages is not unlimited." Id. at 15397 ¶ 11. Consistentwith this notion, the FCC stated several times that a consumer may "fully revoke[]" her prior express consent by transmitting an opt-out request to the sending party. Id. at 15397 ¶ 11 n.47; see also id. at 15394 ¶ 7 (); id. at 15398 ¶ 13 ().
The remainder of the analysis in SoundBite focuses on why permitting a text message confirming an opt-out request would be harmonious with the TCPA's objectives, a concern not germane to this appeal. Thus, notwithstanding the fact that SoundBite principally addresses an unrelated issue, the decision demonstrates that the FCC endorses two important points: (1) a consumer may revoke her informed consent once it has been given, see id. at 15397 ¶ 11 n.47, and (2) there is no temporal limitation on when a consumer may revoke her prior express consent by sending an opt-out message, see, e.g., id. at 15398 ¶ 13 (); id. ¶ 15 (same).
Dell's principal argument is that the TCPA's silence as to whether a consumer may...
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