Can a Contract Make TCPA Consent Irrevocable? Reyes and Its Limits

In some courts, yes. The Second Circuit held in Reyes v. Lincoln Automotive Financial Services that a customer who agreed to calls as a term of a car lease couldn’t later revoke that consent unilaterally, and the Eleventh Circuit agreed in Medley v. Dish Network, LLC. Other courts disagree, and new FCC revocation rules are scheduled to take effect April 11, 2025. A well-drafted contract term is a real defense to servicing and collection call claims, but not everywhere and not for every call.

What did Reyes v. Lincoln Automotive decide?

It decided that consent given as a term of a binding contract can’t be revoked at will under the TCPA.

Alberto Reyes leased a Lincoln MKZ in 2012. His lease said the lessor, the finance company, the holder, and their “affiliates, agents and service providers may use any email address or any telephone number you provide, now or in the future, including a number for a cellular phone or other wireless device,” and the consent covered contact by, among other means, “prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems,” according to the Second Circuit’s amended opinion. After a payment default, Reyes said he mailed a letter asking the company to stop calling his cell phone. The company said it never got it. Its lawyer confirmed 141 live calls and 389 prerecorded ones, as the opinion recounts.

The court found a jury question on whether Reyes revoked, then affirmed summary judgment for the company anyway. The court wrote that Reyes’s consent “was not provided gratuitously; it was included as an express provision of a contract to lease an automobile from Lincoln,” and that the common law treats consent as one that “becomes irrevocable when it is integrated into a binding contract,” per the opinion. It left the worry about consent clauses in standard contracts to Congress: “We are not free to substitute our own policy preferences for those of the legislature by reading a right to revoke contractual consent into the TCPA where Congress has provided none.”

The court contrasted earlier appellate cases in which plaintiffs gave consent “by furnishing their telephone numbers to businesses in connection with loan and insurance applications,” consent that, the opinion said, “is not given in exchange for any consideration, and which is not incorporated into a binding legal agreement.” In my view, application-only consent is the weakest version.

Under 47 U.S.C. § 227(b)(3), a person can recover actual monetary loss or $500 for each violation, whichever is greater, and if the court finds the violation willful or knowing, it may increase the award to as much as three times that amount.

What did the FCC say about revocation in 2015?

The FCC said consumers can revoke consent at any time by any reasonable means, and that callers can’t dictate how. Reyes and Medley both read the ruling as silent on consent written into a contract.

In its July 2015 declaratory ruling, the Commission clarified that “consumers may revoke consent through any reasonable means” and that “callers may not infringe on that ability by designating an exclusive means to revoke,” according to FCC 15-72 at paragraphs 55 and 63.

Reyes read that ruling as limited to consent given freely, and I read it the same way. The D.C. Circuit then upheld the FCC’s reasonable-means standard in ACA International v. FCC (2018), but it wrote that “The ruling precludes unilateral imposition of revocation rules by callers; it does not address revocation rules mutually adopted by contracting parties.” That passage supports agreed revocation methods more directly than a ban on revocation.

Which courts have followed Reyes, and which have refused?

Two federal courts of appeals take the Reyes position: the Second Circuit, which decided it, and the Eleventh. Several district courts have declined to follow it.

The Eleventh Circuit adopted Reyes in 2020. In Medley, the court framed the question this way: “The question is whether the TCPA allows unilateral revocation of consent given in a bargained-for contract. The district court found that it does not, and we agree.” A federal court in Maine applied the same rule to a credit card agreement in Carl v. First National Bank of Omaha (D. Me. June 15, 2021), writing, “Ultimately, the Court is persuaded by the reasoning of Reyes and Medley.”

A Maryland federal court in Ginwright v. Exeter Finance Corp. (D. Md. 2017) wrote that it “declines to adopt the prohibition on revocation in Reyes, which would result in the effective circumvention of the TCPA in the debtor-creditor context.” It also held, in the alternative, that the credit application wasn’t part of the borrower’s contract with Exeter, which had bought the loan. In the Third Circuit, whose 2013 Gager decision let a borrower revoke consent given in a credit application, as Reyes describes it, a Pennsylvania federal court in Allen v. First National Bank of Omaha (M.D. Pa. June 28, 2021) wrote that “the Court declines to adopt the approach to unilateral revocation of consent taken by Reyes.”

For California businesses, the closest decision I found is from Nevada. In Singer v. Las Vegas Athletic Clubs (D. Nev. 2019), a gym relied on its membership agreement, and the court wrote that “the Court is bound by the Ninth Circuit’s ruling in Van Patten” and that Reyes “cannot be reconciled with Van Patten, ACA Int’l, or the 2015 FCC Order.” The Ninth Circuit’s 2017 decision in Van Patten v. Vertical Fitness Group, LLC said, “The consumer may revoke his or her consent but in that case must clearly express that he or she does not want to receive the messages or calls,” and it ruled for the gym because canceling the membership didn’t revoke consent. I’m not aware of a published Ninth Circuit opinion deciding the Reyes question, so in California, irrevocable consent is an argument, not a safe harbor.

The middle path comes from Iowa. In Thompson-Harbach v. USAA Federal Savings Bank (N.D. Iowa 2019), the court said Reyes “went too far” but held that “parties may, by mutual agreement, limit the means by which a consumer can withdraw consent to be called on the telephone, so long as the means contracted to are reasonable.” The bank lost that point, though it won the case on the autodialer issue. Its agreement said a customer “may” revoke by editing an online profile, and the court read that as “one way, but not necessarily the only way” to revoke.

Do the FCC’s April 11, 2025 revocation rules change the answer?

They make revocation easier, and the rule text contains no exception for contract terms. Whether Reyes survives them is untested.

The FCC adopted FCC 24-24 on February 15, 2024. A Federal Register notice published October 11, 2024 set April 11, 2025 as the effective date for the new revocation paragraphs, 47 C.F.R. § 64.1200(a)(10) and (a)(11), and for a ten-business-day deadline to honor company-specific do-not-call requests under (d)(3). For calls and texts covered by (a)(1) through (3) and (c)(2), a called party may revoke prior express consent “by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender,” requests “must be honored within a reasonable time not to exceed ten business days from receipt of such request,” and callers “may not designate an exclusive means to request revocation of consent,” according to the rule text in FCC 24-24.

In footnote 33, the FCC said commenters who wanted to negotiate revocation terms hadn’t analyzed how the TCPA and contract law fit together, and it wrote that “courts are well-equipped to apply the relevant body of contract law that may arise in TCPA litigation,” per FCC 24-24. That footnote isn’t an exception, and it addresses negotiated revocation terms, not irrevocable consent. Plaintiffs will cite the first sentence of (a)(10), the right to revoke by any reasonable method, against any clause that bars revocation, and the exclusive-means sentence against any clause that limits how a customer can revoke. No court has yet decided how either kind of clause fares against the codified rule.

Courts that rejected Reyes, including Ginwright and Singer, leaned on the 2015 ruling, so the weight courts give FCC interpretations matters here. On October 4, 2024, the Supreme Court agreed to decide in McLaughlin Chiropractic Associates, Inc. v. McKesson Corp. “Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act,” per the question presented.

How should a consumer contract word the consent term?

Put it in the signed contract and say what happens to revocation. Keep marketing consent out of it.

Start with placement. Both appellate decisions, Reyes and Medley, involved consent written into the agreement itself. Consent that appears only on an application can still count if the contract absorbs it: in Carl, the court noted that the cardholder’s initial consent “was subsequently cemented as a part of the cardholder agreement.” In Ginwright, by contrast, the integration clause left the application out of the contract the loan buyer acquired.

Then cover who may call (the company and anyone servicing or later holding the account), how (live calls, texts, prerecorded or artificial voice, and automated systems), and which numbers (any number the customer gives, “now or in the future,” in the words of the Reyes lease). Name holders and assignees, and put the consent in the contract or an addendum that travels with any assignment.

Next, address revocation in so many words. A Tennessee federal court that declined to follow Reyes in Ammons v. Ally Financial, Inc. (M.D. Tenn. 2018) noted that “the parties here did not contractually agree to a revocation mechanism.” A business can state that consent to servicing and collection calls continues while the account is open and can’t be withdrawn unilaterally, which is the Reyes position in the Second and Eleventh Circuits. Thompson-Harbach, though, said Reyes went too far in letting a company bar a consumer “from ever withdrawing consent.” A business can instead set out a specific, reasonable revocation method and say it’s the only one. The Thompson-Harbach court said a contract that followed “may” with “may not” language “would have clearly delineated the one and only way a customer could withdraw consent.” Once the FCC rule takes effect, both approaches face it. Whichever you choose, I’d honor clear revocation requests and save the clause for disputed ones.

Keep marketing consent separate. For telemarketing calls with an autodialer or prerecorded voice, the FCC’s definition of prior express written consent requires a disclosure that the person “is not required to sign the agreement (directly or indirectly) or agree to enter into such an agreement as a condition of purchasing any property, goods, or services,” per 47 C.F.R. § 64.1200(f)(9). Consent that must be optional is hard to call bargained-for. In my view, Reyes is a servicing and collection tool, not a way to keep making sales calls to a customer who has said no.

Where does a bargained-for consent defense stop protecting you?

The forum matters most. The Reyes rule binds courts in the Second Circuit and, through Medley, the Eleventh. District courts in the Third Circuit have rejected it, and elsewhere it’s unsettled. Proof matters next: an enforceable contract with the person called.

The clause covers only the calls it describes. In Medley, the customer’s consent let DISH contact her “regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation,” and a concurring judge wrote that once her debt was discharged in bankruptcy, that “may mean that under the terms of the contract DISH was not permitted to call her,” according to the opinion. A TCPA consent clause doesn’t change a telemarketer’s duty to honor a residential subscriber’s company-specific do-not-call request under 47 C.F.R. § 64.1200(d)(3).

I’d treat a Reyes clause as a litigation backstop, not an operating policy. Honor a clear stop request, log it, and keep the contract term for the disputed revocation, like the letter in Reyes that the company said it never received. If your company decides to keep calling after a revocation, make that a written decision with counsel, limited to accounts and courts where the law supports it. For autodialer claims, the separate defenses are covered in our post on TCPA autodialer claims after Duguid.

When a customer says they revoked consent

1. Put a litigation hold on call and text logs, platform data, and the contract and consent records for the number.
2. Pull the account notes and opt-out entries, with the date each request arrived and when the number was suppressed.
3. Pull the Do Not Call Registry scrub records and version dates for any telemarketing calls to that number.
4. Collect the servicing vendor’s contract, call scripts, and any prerecorded messages used on the account.
5. Talk to a lawyer before you respond to a demand letter, contact the customer, or offer anything to settle.

The firm’s page on TCPA litigation defense explains how claims involving calls made after a disputed revocation of consent move from a demand letter to a lawsuit.

Questions businesses ask about contractual consent

Does Reyes apply to calls to California customers?

Not as binding law. The Ninth Circuit hasn’t decided the Reyes question in a published opinion that I’ve found, and a Nevada federal court in that circuit refused to follow Reyes in 2019. A company can raise the argument but shouldn’t plan around winning it.

Does consent in a credit or loan application count as bargained-for?

It depends on whether the application consent became part of the binding agreement. Reyes distinguished consent given by furnishing a number on an application without consideration. Carl enforced consent that started in an application and was carried into the cardholder agreement. If your consent language lives only in the application, put it in the agreement too.

Can our contract require customers to revoke only in writing?

At least one federal court has held that parties may agree to a reasonable revocation method, though it read “may” in the bank’s contract as one option, not the only one. The FCC’s rule scheduled for April 11, 2025 bars callers from designating an exclusive means to revoke, and no court has tested an agreed method against it. If you take this route, use mandatory wording and expect a fight.

Do the April 11, 2025 FCC rules override Reyes?

The FCC didn’t say. The rule text has no contract exception, and a footnote noted that courts can apply contract law in TCPA cases. A Reyes defense would then face a codified revocation right.

If your company is defending a revocation claim

If your company is accused of calling a customer after they revoked consent, the contract, the account notes, and the timing of each call often decide the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving calls made after a disputed revocation of consent. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, in the eCFR version in effect on February 1, 2025. The FCC orders are FCC 15-72 (2015) and FCC 24-24 (2024), with the effective date at 89 Fed. Reg. 82518 (Oct. 11, 2024).

The court decisions are Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017); Medley v. Dish Network, LLC, 958 F.3d 1063 (11th Cir. 2020); ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); Ginwright v. Exeter Finance Corp., 280 F. Supp. 3d 674 (D. Md. 2017); Ammons v. Ally Financial, Inc., 326 F. Supp. 3d 578 (M.D. Tenn. 2018); Thompson-Harbach v. USAA Federal Savings Bank, 359 F. Supp. 3d 606 (N.D. Iowa 2019); Singer v. Las Vegas Athletic Clubs, 376 F. Supp. 3d 1062 (D. Nev. 2019); Carl v. First National Bank of Omaha, No. 2:19-cv-00504-GZS (D. Me. June 15, 2021); and Allen v. First National Bank of Omaha, No. 3:18-cv-1216 (M.D. Pa. June 28, 2021).

This post is general information about the Telephone Consumer Protection Act and related laws as of February 1, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.