Argued on May 13, 2013
On Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 3-11-cv-02115) District Judge: Honorable Robert D. Mariani
Cary L. Flitter, Esquire (Argued) Andrew M. Milz, Esquire Flitter Lorenz, P.C. Carlo Sabatini, Esquire Sabatini Law Form, LLC Counsel for Appellant
Anthony L. Gallia, Esquire (Argued) James G. Welch, Esquire Duane Morris LLP Counsel for Appellee
Before: FUENTES, SHWARTZ and ROTH, Circuit Judges
ROTH, CIRCUIT JUDGE:
Ashley Gager brought suit against Dell Financial Services alleging that Dell violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227(b)(1)(A)(iii), by using an automated telephone dialing system to call her cellular phone after she revoked her prior express consent to be contacted. Gager contends that the District Court improperly dismissed her complaint for failure to state a claim on the theory that she could not revoke her consent once it was given. We agree with Gager. Therefore, for the reasons that follow, we will reverse the judgment of the District Court and remand this case for further proceedings consistent with this opinion.
Around December 2007, Gager applied for a line of credit from Dell to purchase computer equipment. The credit application required that she provide her home phone number. Gager listed her cellular phone number in that place on the application. In doing so, however, she neither stated that the number was for a cellular phone, nor did she indicate that Dell should not use an automated telephone dialing system to call her at the number she provided.
Dell granted Gager a line of credit, which she used to purchase several thousand dollars worth of computer equipment. Gager subsequently defaulted on her debt. Dell then began using an automated telephone dialing system to call Gager's cellular phone, leaving pre-recorded messages on her voicemail concerning the debt. In December 2010, Gager sent a letter to Dell, listing her phone number and asking Dell to stop calling it regarding her account. The letter did not indicate that the number was for a cellular phone. Gager has alleged that, after receiving her letter, Dell called her cellular phone approximately forty times over the three week period, using an automated telephone dialing system.
Gager filed a complaint in the Court of Common Pleas of Wayne County, Pennsylvania, asserting violations of 47 U.S.C. § 227(b)(1)(A)(iii), the TCPA's provision banning certain automated calls to cellular phones. Gager alleged that, after receiving her letter, Dell had an obligation under the TCPA to cease all autodialed calls to her cellular phone because she had withdrawn her prior express consent to be contacted at that number via an automated dialing system. The case was subsequently removed to the Middle District of Pennsylvania under 28 U.S.C. § 1441.
Dell moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The District Court granted the motion, holding that Gager could not revoke her prior express consent for three reasons. First, the court concluded that the lack of language in the TCPA providing for "post-formation revocation of consent" weighed in favor of finding that no such right exists. Gager v. Dell Fin. Servs., LLC, No. 11-cv-2115, 2012 WL 1942079, at *6 (M.D. Pa. May 29, 2012). Second, the District Court held that, although Gager was entitled to give "instructions to the contrary" as to whether Dell could use an automated telephone dialing system to call her, those instructions had to be "provided at the time [she] . . . „knowingly release[d]' her telephone number" to Dell. Id. Finally, the District Court determined that, because ...