The answer depends on whether the right to call and text was given contractually or gratuitously.

You ever wonder why a credit card, lease, loan, or other agreement is dozens of pages of tiny print? So they can hide provisions whose sole purpose is to prejudice your rights. I’ve talked in the past about mandatory arbitration provisions and the lengths corporations go to keep you out of court. However, careful consumers need to also keep their eyes open for provisions which grant the business the right to contact them through the use of an automatic dialing system.

The Telephone Consumer Protection Act (TCPA) prohibits calls to you cell phone through the use of an automatic dialing system without your prior express consent. Often, consent is given by a consumer by providing a company with your cell phone number or otherwise gratuitously allowing the company to call you. However, as consumers have fought back against spam calls, these companies have starting adding provisions to their contracts that expressly and therefore contractually provide consent to call.

This development is important for a reason. Generally, courts have held that a consumer is free to revoke consent to call . Once that consent is revoked, each individual call constitutes a violation of the TCPA and therefore entitles the consumer to between $500 and $1500 in damages per call. However, in June of 2017, the Second Circuit Court of Appeals held that while gratuitous consent can be revoked, contractual consent cannot. That means that if your contract with a company contains a provision expressly granting consent to call using an automatic dialing system, you may be unable to revoke consent and the company can continue calling you without violating the TCPA. Rhode Island and Massachusetts are not located in the Second Circuit and, as such, the decision is not binding on Rhode Island and Massachusetts courts.

When you meet with Enright Law to discuss your specific debt collection or spam call issue, I will conduct a detailed review of your agreements and other relevant documents to advise you as to the best way to proceed. We can formulate a plan before filing a lawsuit to maximize your chance of recovery and anticipate the company’s likely arguments, including the existence of a provision contractually granting consent. Contact me now to get your free consultation.


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