Can a seller contractually prohibit a customer from revoking his or her consent to receive autodialed and/or pre-recorded message calls under the Telephone Consumer Protection Act (TCPA)? According to the U.S. Court of Appeals for the Second Circuit, the answer is “yes.” On June 22, 2017, in Reyes v. Lincoln Automotive Financial Services, No. 16-2104 (2d Cir. June 22, 2017), a first-of-its-kind decision, a three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed a district court’s award of summary judgment to defendant Lincoln Automotive Financial Services on the plaintiff’s TCPA claim, which alleged that Lincoln violated the Act by placing autodialed and pre-recorded message calls to the plaintiff’s cell phone without appropriate consent.
The underlying facts were relatively straightforward: in 2012, the plaintiff leased a new car; Lincoln financed the lease. The lease contained a provision, to which the plaintiff assented, stating:
You [plaintiff] also expressly consent and agree [that Lincoln] may use written, electronic or verbal means to contact you. This consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages . . . and/or automatic telephone dialing systems. You agree that [Lincoln] may use . . . any telephone number you provide, now or in the future, including a number for a cellular phone or other wireless device, regardless of whether you incur charges as a result.