Gager v. Dell Financial Services, LLC
2013 U.S. App. LEXIS 17579
| 3rd Cir. | 2013Background
- Plaintiff Ashley Gager provided her cellular number on a Dell credit application, later defaulted, and Dell used an automated telephone dialing system (autodialer) to call and leave prerecorded messages.
- In December 2010 Gager sent Dell a letter listing her number and demanding the calls stop; Dell allegedly continued to place ~40 autodialed calls over three weeks.
- Gager sued under the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), alleging she revoked prior express consent to autodialed calls to her cell phone.
- District Court granted Dell’s Rule 12(b)(6) motion, holding (1) the TCPA does not permit post-formation revocation of consent, (2) any instructions to the contrary had to be given when Gager provided her number, and (3) debt-collection calls are exempt.
- Third Circuit reversed: it held the TCPA permits consumers to revoke prior express consent to autodialed calls to cellular phones and that there is no temporal limitation on revocation; it rejected Dell’s debt-collection and equitable/contract defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA permits revocation of prior express consent to autodialed calls to a cell phone | Gager: consent is revocable; TCPA (and FCC guidance) permits opt-out | Dell: TCPA is silent on revocation so no post-formation revocation right exists | Court: Yes — consent is revocable under TCPA (common-law consent, statutory purpose, FCC guidance support revocation) |
| Whether any temporal limit exists on revocation (must be given when number provided) | Gager: no temporal limit; may revoke anytime | Dell: must provide instructions to the contrary at time consent was given (credit application) | Court: No temporal limitation; revocation may occur after consent was given |
| Whether debt-collection/content-based exemptions bar revocation or preclude TCPA claim | Gager: cellular calls are not covered by debt-collection exemptions; TCPA prohibits autodialed calls to cell phones absent consent | Dell: calls were debt-collection and thus exempt from TCPA restrictions | Court: Exemptions Dell cites apply to landlines, not cellular numbers; content-based exemptions inapplicable here |
| Whether equitable or contract principles bar revocation (e.g., waiver, unfairness) | Gager: contractual/collection concerns do not override TCPA rights; creditors may still call live | Dell: allowing revocation unfairly impairs creditor’s ability to collect; consent part of consideration | Court: Rejected equitable/contract defenses; TCPA rights remain and creditors can use live calls instead of autodialers |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standard for Rule 12(b)(6) pleading)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (TCPA purpose and federal jurisdiction)
- Neder v. United States, 527 U.S. 1 (incorporation of common-law meanings)
- Restrepo v. Attorney General of U.S., 617 F.3d 787 (3d Cir. statutory interpretation guidance)
- Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993 (remedial statutes construed to benefit consumers)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (text messages as "calls" under TCPA)
- United States v. Mead Corp., 533 U.S. 218 (deference to agency interpretations of law)
- Desnick v. American Broad. Cos., Inc., 44 F.3d 1345 (common-law revocation of consent)
- United States v. Greer, 607 F.3d 559 (withdrawal of consent in search context)