On May 1, the US Court of Appeals for the Eleventh¹ joined the Second Circuit² in holding that one who consents to be contacted under a bilateral contract cannot unilaterally revoke that consent. This is a critical ruling as consumers have recently been entering into contracts providing consent to be contacted, attempted to revoke that consent, and then sued for violations of the Telephone Consumer Protection Act (TCPA).

Before reaching the TCPA issue, the Eleventh Circuit addressed a significant bankruptcy-discharge issue. In this case, the appellant contracted with DISH Network, LLC (DISH) for television services, and expressly authorized DISH to "contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH" through an automatic telephone dialing systems (ATDS). Approximately one year later, the appellant filed a voluntary Chapter 7 bankruptcy petition in the US Bankruptcy Court for the Middle District of Florida, listing outstanding debts to DISH as an unsecured creditor. The appellant did not, however, list her contract with DISH in her petition, instead stating that she "had no executory contracts."

After the Bankruptcy Court entered its order discharging all of appellant's disclosed debts, DISH continued to send her bills, and to contact her directly for collection. In response, the appellant's counsel sent a total of three faxes informing DISH that they represented the appellant "with regard to her debts generally" in bankruptcy, and warning DISH of the TCPA's prohibition against making calls to their client through an ATDS without prior consent, explicitly stating that her "consent [is] hereby forever revoked." Nevertheless, DISH made six automated calls to the appellant to collect unpaid sums.

Despite the appellant's bankruptcy discharge, DISH argued that it was entitled to the sums because the appellant failed to list the agreement as an executory contract on the bankruptcy petition, and thus the agreement was not rejected. The Circuit Court summarily disagreed, relying on 11 U.S.C. § 365(a), under which an executory contract is deemed rejected within 60 days after the discharge order if the trustee has not assumed or rejected the contract. Further, because the appellant disclosed her relationship with DISH in her petition, and no evidence existed that she intended to conceal the relationship, her failure to list the DISH agreement as an executory contract on her petition had no effect. The appellant's contract with DISH was therefore rejected because the trustee did not assume or reject the contract within 60 days.

Importantly, rejection does not nullify the contract—it ends the debtor's obligation to perform. This creates a prepetition breach of contract claim that is unenforceable after the discharge order, which releases "any liability on a claim that arose or [was] determined to arise before the petition [was] filed." Having received her discharge order, DISH was foreclosed from seeking breach-of-contract damages.

Given the executory nature of the appellant's contract, deciding her TCPA claim hinged on whether she could unilaterally revoke the consent provided in her DISH contract. Recognizing that the TCPA is silent regarding revocation, the Circuit Court applied common law contract rules instead. That law is clear—where consent is gratuitously and freely given, it may be unilaterally revoked, but where consent is an agreed upon term in a binding contract, it is not. Thus, the Circuit Court held that one cannot unilaterally revoke consent given in an executory contract and thereby create liability under the TCPA for future correspondence.

The Eleventh and Second Circuits' holdings provide a strong defense to TCPA actions, making both venues friendlier forums for businesses and corporations using an ATDS. Given the considerable consequences of these opinions, we expect this growing defense will quickly come before the remaining circuits and shape the future of TCPA litigation.

^{1 Medley v. Dish Network, LLC, No. 8:16-cv-02534-CEH-CPT (11th Cir. 2020).
2 Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2nd Cir. 2017).}