Case: 18-13841 Date Filed: 05/01/2020 Page: 1 of 21
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13841 ________________________
D. C. Docket No. 8:16-cv-02534-CEH-CPT
LINDA MEDLEY,
Plaintiff-Appellee,
versus
DISH NETWORK, LLC,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida _________________________
(May 1, 2020)
Before JILL PRYOR and GRANT, Circuit Judges, and ROYAL, * District Judge.
* Honorable C. Ashley Royal, Senior United States District Judge for the Middle District of Georgia, sitting by designation. Case: 18-13841 Date Filed: 05/01/2020 Page: 2 of 21
ROYAL, District Judge:
This appeal raises issues related to consumer debt collection practices on debt
Appellant Linda Medley contends was discharged in a voluntary Chapter 7
bankruptcy. Medley filed suit alleging Appellee DISH Network, LLC violated the
Florida Consumer Collection Practices Act (“FCCPA”) in its attempts to collect debt
it knew had been discharged in bankruptcy and in its direct contacts with Medley
knowing she was represented by counsel. In addition, Medley alleged DISH violated
the Telephone Consumer Practices Act (“TCPA”) by contacting Medley about the
debt with an automated dialing system after she revoked her consent to receive such
calls. The district court granted summary judgment in favor of DISH on all claims,
and Medley appeals. After careful review and with the benefit of oral argument, we
AFFIRM the district court on the TCPA claim and REVERSE and REMAND on
the FCCPA claims.
I. BACKGROUND
Appellant Linda Medley entered into a 24-month Digital Home Advantage
Plan Agreement (the “Agreement”) with DISH to receive satellite television services
in exchange for monthly payments. The Agreement included an option to participate
in the DISH Pause program. For a $5.00 monthly fee, the Pause program allowed
customers to temporarily suspend their satellite services and the charges for those
services, for up to nine months during the term of the Agreement. Upon participation
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in the Pause program, a customer’s 24-month term commitment would be extended
by the number of days she suspended her service.
As part of the Agreement, Medley provided her cellular telephone number 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 automated
or predictive dialing system or prerecorded messaging system.”
Approximately eleven months into the two-year term of her contract, Medley
called DISH to cancel her services. Upon learning the amount of early termination
fees such cancellation incurred under the Agreement, however, she instead elected
to participate in the DISH Pause program.
Approximately two months later, Medley, through her attorneys, filed a voluntary
Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Middle
District of Florida. Medley listed DISH TV and an amount of $831.74 on Schedule
F, the schedule requiring petitioners to list outstanding debt to unsecured creditors.
Medley did not list the Agreement on Schedule G, the schedule requiring petitioners
to list all executory contracts and unexpired leases of real or personal property.
Instead, she checked the box signifying she had no executory contracts and
unexpired leases and signed the schedules.
Thereafter, the bankruptcy court entered its discharge order and discharged
Medley’s listed debts, including the $831.74 DISH amount that Medley listed on
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Schedule F. DISH wrote off the $831.74 amount but continued to bill Medley the
monthly $5.00 fee for the DISH Pause program. Medley did not pay these Pause
fees.
Over a month after Medley’s debts were discharged, DISH sent an email directly
to Medley to collect the Pause fees. In response, Medley’s counsel sent DISH the
first of three facsimiles identifying Medley’s DISH account and specifically notified
DISH that the law firm of Leavengood, Dauval & Boyle represented Medley “with
regard to her debts generally (i.e. for the purpose of settling ALL of her debts for
filing a bankruptcy), including the above listed account and any other accounts of
debts which you or your agency is attempting to collect from our client(s).”
Subsequently, DISH sent four more emails directly to Medley seeking payment of
the monthly Pause charges DISH continued to bill. In response, Medley’s attorneys
twice re-sent the same facsimile.
The facsimiles from Medley’s attorneys also noted the TCPA’s prohibition
against making any call to their client using an automatic telephone dialing system
(“ATDS”) or an artificial or pre-recorded voice to a cellular phone without prior
consent. The facsimiles expressly stated that “[t]o the extent any such prior express
consent existed, if any, to call the above person using an ATDS, such consent is
hereby forever revoked consistent with the Florida and federal law.” DISH made six
automated calls to Medley’s cell phone after receiving the first fax.
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When the DISH Pause feature expired, DISH removed it from Medley’s account,
restored her television services, and immediately disconnected her account for
nonpayment of her DISH Pause charges. DISH then adjusted the new post-discharge
charges to zero.
Medley filed suit in the Middle District of Florida raising claims under the
FCCPA and the TCPA. Medley claimed DISH violated the FCCPA because DISH
continued to contact her directly knowing she was represented by counsel about a
debt it knew had been discharged in bankruptcy.1 In addition, Medley claimed DISH
violated the TCPA by using an ATDS or prerecorded voice to call Medley on her
cell phone after Medley revoked her consent to receive such calls. The district court
granted summary judgment in DISH’s favor on all claims.
The district court characterized the Pause debt and the satellite services debt as
separate debts, ultimately finding that the services debt was discharged, but the
Pause debt was not. The court reasoned that the Agreement was an executory
contract that was not deemed rejected under bankruptcy law because Medley failed
to specifically list it on Schedule G of her bankruptcy schedules. Because the
Agreement was not deemed rejected, the Pause charges that accrued after the petition
was filed were post-petition debt that was not discharged in the bankruptcy.
1 Medley also alleged harassment in violation of § 559.77(1) under the FCCPA, but she did not appeal that claim. 5 Case: 18-13841 Date Filed: 05/01/2020 Page: 6 of 21
The district court relied on this threshold finding to grant DISH summary
judgment on Medley’s FCCPA claims. The court first found that DISH did not
attempt to collect an illegitimate in debt in violation of FCCPA § 559.72(9) because
DISH’s alleged unlawful contact with Plaintiff concerned only the Pause debt that
was not discharged. Likewise, the communications to DISH from Medley’s
attorneys stated that they represented Medley concerning the discharged services
debt; DISH directly contacted Medley only about the non-discharged Pause debt;
thus DISH did not violate FCCPA § 559.72(18)’s prohibition on directly contacting
a debtor it knows to be represented by counsel. Finally, the district court found
DISH’s automated telephone calls did not violate the TCPA because the TCPA does
not authorize unilateral revocation of consent to receive automated calls when such
consent is given in a bargained-for contractual provision. Medley appeals.
II. ANALYSIS
We review a district court’s grant of summary judgment de novo, “viewing all
facts and reasonable inferences in the light most favorable to the nonmoving party.”
Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir. 2014).
A. EFFECT OF THE BANKRUPTCY
Before addressing the FCCPA and TCPA claims on appeal, we must determine
whether the district court erred in finding the Pause debt was not discharged in
Medley’s bankruptcy. We find it did. As explained herein, the Agreement was
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deemed rejected as a matter of law under the Bankruptcy Code during Medley’s
bankruptcy; as a result, DISH had a prepetition breach of contract claim for the debt
as a general unsecured creditor; that claim was discharged when the bankruptcy
court entered the discharge order.
A fundamental objective of the Bankruptcy Code “is to provide a procedure
by which certain insolvent debtors can reorder their affairs, make peace with their
creditors, and enjoy a new opportunity in life with a clear field for future effort.” In
re St. Laurent, 991 F.2d 672, 680 (11th Cir. 1993) (internal quotations omitted). To
accomplish this fresh start policy, the “Bankruptcy Code contains broad provisions
for the discharge of debts, subject to” certain limited exceptions enumerated under
11 U.S.C. § 523(a). Lamar, Archer & Cofrin v. Appling, __ U.S. __, 138 S.Ct. 1752,
1758, 201 L.Ed.2d 102 (2018).
When a Chapter 7 debtor receives a discharge, she is discharged from all debts
and “any liability on a claim” that arose, or are determined to arise, before the
bankruptcy is filed. 11 U.S.C. § 727(b); In re Mitchell, 633 F.3d 1319, 1326 (11th
Cir. 2011) (A discharge in bankruptcy discharges only those debts which are in
existence at the time the petition in bankruptcy is filed.). A Chapter 7 discharge
relieves the debtor of personal liability; it does not nullify a prepetition agreement
or render any agreement unenforceable. See e.g., Johnson v. Home State Bank, 501
U.S. 78, 83, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (stating that a Chapter 7
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discharge “extinguishes only ‘the personal liability of the debtor’” and rejecting the
argument that the underlying lien disappears with a discharge) (emphasis in
original).
DISH’s claim for the Pause debt is derived from the Agreement. The Agreement
provides:
Suspension of Service: If you participate in DISH Pause or any other program that allows you to temporarily suspend your DISH service at any time during your term commitment, your term commitment will be extended by the number of days that your service is suspended. DISH will determine eligibility for participation and may deny eligibility for any reason.
The Agreement also specifies the Pause fee at $5.00 upon Medley’s election to
participate.
Both parties accept on appeal the district court’s characterization of the
Agreement as an executory contract.2 Section 365 of the Bankruptcy Code governs
executory contracts. 11 U.S.C. § 365(a). Under § 365, a trustee may assume or reject
any executory contract of the debtor. In a Chapter 7 bankruptcy case, “if the trustee
does not assume or reject an executory contract . . . of the debtor within 60 days after
the order for relief . . . then such contract . . . is deemed rejected.” Id. §365(d)(1).
Here, it is undisputed that the trustee neither assumed nor rejected the Agreement.
2Although Medley questions the validity of the district court’s characterization of the Agreement as executory and disputes that such characterization is even necessary to decide this case, she did not appeal such determination, and thus it is not an issue properly before this panel. 8 Case: 18-13841 Date Filed: 05/01/2020 Page: 9 of 21
The district court held that the Agreement was not deemed rejected under § 365
because Medley failed to disclose it as an executory contract on Schedule G. We
disagree.
Medley’s failure to specifically list the Agreement as an executory contract on
Schedule G does not prevent its deemed rejection. First, Medley disclosed DISH as
an unsecured creditor on Schedule F. Thus, the trustee had notice of their
relationship. Second, DISH clearly had notice of the bankruptcy and could have
objected to the dischargeability of its breach of contract claim, but it did not do so.
Finally, no evidence indicates Medley intentionally concealed the Agreement with
DISH. See In re the Matter of Provider Meds, LLC, 907 F.3d 845, 858 (5th Cir.
2018) (“At a minimum, the statutory presumption of rejection after sixty days is
conclusive where there is no suggestion that the debtor intentionally concealed a
contract from the estate’s trustee.”). Because the trustee neither assumed nor rejected
the Agreement, Medley disclosed her relationship with DISH on the petition, and no
evidence indicates Medley attempted to conceal the Agreement from the trustee, we
find the Agreement was deemed rejected pursuant to § 365(d)(1) of the Bankruptcy
Code.
Rejection of a contract constitutes a breach of the contract immediately before
the filing of the bankruptcy petition. 11 U.S.C. § 365(g)(1). Rejection does not
dissolve or nullify the contract. Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294,
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1306-1307 (11th Cir. 2007) (“[R]ejection does not embody the contract-vaporizing
properties so commonly ascribed to it…. Rejection merely frees the estate from the
obligation to perform; it does not make the contract disappear.” (internal quotation
marks and citation omitted)). Rejection results in a prepetition breach under the
terms of § 365(g), and the non-debtor party’s remedy is a claim for breach of
contract. 11 U.S.C. § 365(g)(1); Thompkins, 476 F.3d at 1307. Thus, upon rejection
of the Agreement, DISH had a prepetition breach of contract claim against Medley
for the Pause debt.
DISH’s claim, however, was discharged when the bankruptcy court entered the
discharge order. As stated earlier, under § 727(b) of the Bankruptcy Code, a
discharge in a Chapter 7 case “discharges the debtor from all debts” and “any
liability on a claim” that arose or are determined to arise before the petition is filed.
11 U.S.C. § 727(b); In re Edgeworth, 993 F.2d 51, 53 (5th Cir. 1993) (“A discharge
in bankruptcy does not extinguish the debt itself, but merely releases the debtor from
personal liability for the debt.”). Thus, DISH’s prepetition breach of contract claim
to recover the Pause debt was discharged in Medley’s Chapter 7 bankruptcy case.
Having determined that DISH’s claim for the Pause debt was discharged, we now
analyze the FCCPA and TCPA claims.
B. FCCPA CLAIMS
Medley appeals the district court’s rulings in favor of DISH on her FCCPA
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claims under § 559.72(9) and § 559.72(18). FCCPA § 559.72(9) prohibits any
person, in collecting consumer debts, from attempting to enforce a debt that person
knows is not legitimate, or from asserting the existence of any other legal right who
knows the right does not exist. Fla. Stat. § 559.72(9). FCCPA § 559.72(18) prohibits
any person, in collecting consumer debts, to communicate with a debtor if that
person knows that the debtor is represented by an attorney “with respect to such
debt[.]” Fla. Stat. § 559.72(18). Medley contends that DISH violated FCCPA §
559.72(9) by attempting to collect debt it knew had been discharged in bankruptcy
and violated § 559.72(18) by directly contacting her about such debt knowing she
was represented by counsel.
The district court ruled in favor of DISH on both claims based on its threshold
finding that the Pause debt had not been discharged in Medley’s bankruptcy. As to
Medley’s § 559.72(9) claim, the court reasoned DISH properly attempted to collect
the Pause debt because it had not been discharged. As to Medley’s § 559.72(18)
claim, the court found that although DISH knew Medley was represented by counsel
with respect to the discharged services debt, it had no knowledge that Medley was
represented by counsel with respect to the non-discharged Pause debt it was
attempting to collect; thus, DISH’s direct contacts were permissible. As we have
previously explained, however, DISH’s claim to the Pause debt was discharged in
Medley’s bankruptcy. As a result, the basis on which the district court granted
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summary judgment is erroneous.
We agree with Medley that DISH attempted to collect debt it had no legal right
to collect because the debt had been discharged in bankruptcy, and we agree that
DISH directly contacted Medley after having received notice that she was
represented by counsel. To hold a defendant liable, however, both statutes require a
plaintiff to establish that the debt collector possessed actual knowledge. In addition,
the FCCPA provides for a bona fide error defense. Fla. Stat. § 559.77(3). The district
court did not address either. Thus, we remand this case to the district court to
consider whether DISH actually knew that the Pause charges were invalid and that
Medley was represented by counsel with regard to the debt it was attempting to
collect, and if so, whether such errors were unintentional and the result of bona fide
error.
C. TCPA CLAIM
Finally, Medley appeals the district court’s ruling in favor of DISH on her TCPA
claim. The TCPA forbids “any person . . . to make any call (other than a call . . .
made with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice . . . to any telephone
number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1). The
parties do not dispute that Medley expressly consented to be contacted by a
prerecorded voice or ATDS in the Agreement. And there is no dispute that Medley
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unilaterally attempted to revoke that consent via the faxes her attorneys sent to
DISH, yet DISH continued to contact her. 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.
The district court followed the Second Circuit’s reasoning in Reyes v. Lincoln
Auto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017), the only Circuit to specifically
address whether the TCPA allows a consumer to unilaterally revoke consent to
receive automated calls when such consent is given as part of a bargained-for
exchange. Like Medley, the plaintiff in Reyes expressly consented to receive
automated telephone calls to collect a debt as part of a bilateral agreement and
expressly revoked his consent to receive such calls. When the defendant continued
to call, the plaintiff sued for violations of the TCPA. The Second Circuit affirmed
summary judgment for the defendant, holding that “the TCPA does not permit a
party who agrees to be contacted as part of a bargained-for exchange to unilaterally
revoke that consent.” Id. at 56. Acknowledging that the text of the TCPA is silent as
to consent and “evidences no intent to deviate from common law rules defining
‘consent,’” the Circuit applied the common law contract rules defining revocation
of consent in legally-binding agreements. Under such rules, although consent given
voluntarily and gratuitously is revocable under common law, consent given as a
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mutually-agreed-upon term in a legally binding contract is not. Id. at 57-58 (citations
omitted).
Like the district court, we agree with the Second Circuit. We have expressly
stated that “an ‘agreement is a manifestation of mutual assent on the part of two or
more persons,’ [and thus] it is black-letter contract law that one party to an agreement
cannot, without the other party’s consent, unilaterally modify the agreement once it
has been executed.” Kuhne v. Fla. Dep’t of Corrs., 745 F.3d 1091, 1096 (11th Cir.
2014) (quoting Restatement (Second) of Contracts § 3 (Am. Law Inst. 1981); (citing
17A Am. Jur. 2d Contracts § 500 (West database updated Dec. 2013))). As Reyes
notes, this rule originates from the foundational “requirement that every provision
of a contract—including any proposed modification—receive the ‘mutual assent’ of
every contractual party in order to have legal effect.” Reyes, 861 F.3d at 57 (citation
Medley argues such a determination is at odds with our decision in Osorio v.
State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), with the Federal
Communication Commission’s (“FCC”) 2015 Ruling, In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd.
7961, 7994-7999 (2015) (the “2015 FCC Ruling”), and with the consumer-
protection purposes of the TCPA. We are unpersuaded. Contractual consent was not
at issue in Osorio or the 2015 FCC Ruling. In Osorio, we addressed oral revocation
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of consent when given gratuitously in a credit application. Id. at 1255. We
acknowledged that the TCPA is silent “regarding the means of providing or revoking
consent” and, like the Second Circuit, “presume[d] that Congress sought to
incorporate ‘the common law concept of consent.’” Id. (quoting Gager v. Dell Fin.
Servs., LLC, 727 F.3d 265, 270 (3d Cir. 2013); citing Neder v. United States, 527
U.S. 1, 21, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Finding oral revocation
generally permissible under common-law notions of consent, we held that the debtor
could “orally revoke any consent previously given” to the creditor “in the absence
of any contractual restriction to the contrary.” Id. (internal quotation marks and
citations omitted).
Likewise, the 2015 FCC Ruling did not address contractual consent. The FCC
found that “the most reasonable interpretation of consent is to allow consumers to
revoke consent if they decide they no longer wish to receive voice calls or texts.”
2015 FCC Ruling, 30 F.C.C. Rcd. at 7993-94. The FCC stated that “an interpretation
that would lock consumers into receiving unlimited, unwanted texts and voice calls
is counter to the consumer-protection purposes of the TCPA and to common-law
notions of consent.” Id. at 7994. Neither Osorio nor the 2015 FCC Ruling addresses
consent given in a legally binding agreement. Instead, Osorio and the FCC 2015
Ruling address consent given generally and rely on common law tort principles to
find that consent is revocable under the TCPA. See Osorio, 746 F.3d at 1253 (citing
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to RESTATEMENT (2D) OF TORTS); 2015 FCC Ruling, 30 F.C.C. Rcd. at 7994 n.223
(citing to the RESTATEMENT (2D) OF TORTS § 892A, cmt. i. (1979)). Here, however,
Medley gave consent as a mutually-agreed-upon term in a contract; therefore, we
must analyze revocation of consent under the common law principles governing
contracts. As discussed above, common law contract principles do not allow
unilateral revocation of consent when given as consideration in a bargained-for
agreement.
We, like the Second Circuit, are also unpersuaded by the argument that
unilateral revocation of consent given in a legally binding agreement is permissible
because it comports with the consumer-protection purposes of the TCPA. “It was
well-established at the time that Congress drafted the TCPA that consent becomes
irrevocable when it is integrated into a binding contract, and we find no indication
in the statute’s text that Congress intended to deviate from this common-law
principle in its use of the word ‘consent.’” Reyes, 861 F.3d at 58 (citing Neder v.
United States, 527 U.S. 1, 21, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Permitting
Medley to unilaterally revoke a mutually-agreed-upon term in a contract would run
counter to black-letter contract law in effect at the time Congress enacted the TCPA.
“Absent express statutory language to the contrary, we cannot conclude that
Congress intended to alter the common law of contracts in this way.” Reyes, 861
F.3d at 59 (citing Neder, 527 U.S. at 21–23, 119 S.Ct. 1827).
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CONCLUSION
For the foregoing reasons, the district court’s order granting summary
judgment to DISH is AFFIRMED as to the TCPA claim and REVERSED AND
REMANDED as to the FCCPA claims.
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GRANT, Circuit Judge, concurring:
I agree with both of the Court’s principal conclusions. First, Medley’s
FCCPA claims should proceed because her Agreement with DISH was “deemed
rejected” under 11 U.S.C. § 365(d)(1), meaning that she did not accrue new debt
on the Agreement after bankruptcy. Second, Medley’s TCPA claim fails because
she could not unilaterally revoke the written Agreement’s consent provision. I
write separately to note that the Agreement’s rejection (and the debt’s discharge)
may affect DISH’s ability to contact Medley apart from her ability to withdraw
consent. In short, although the Agreement’s rejection did not nullify the consent
provision, the subsequent discharge of Medley’s debt may have taken DISH’s
actions outside the provision’s scope.
At first blush, the consent provision’s continuing ability to shield DISH from
TCPA liability seems counterintuitive; the provision, after all, is part of a contract
that was rejected in bankruptcy. But as the Court’s opinion notes, rejection “does
not dissolve or nullify the contract.” Maj. Op. at 9 (citing Thompkins v. Lil’ Joe
Records, Inc., 476 F.3d 1294, 1306–07 (11th Cir. 2007)). Rather, the Bankruptcy
Code tells us that “the rejection of an executory contract . . . constitutes a breach of
such contract.” 11 U.S.C. § 365(g).
Because debtors typically emerge from Chapter 7 bankruptcies with a fresh
start, it is tempting to think of rejection as a process by which the debtor is entirely
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relieved of her contractual obligations. It is important, though, to distinguish
between rejection and discharge. Rejection is about whether the estate, as opposed
to the debtor, will undertake the obligations of an executory contract. But rejection
does not free the debtor of any obligation. Rather, it “merely frees the estate from
the obligation to perform.” Maj. Op. at 10 (quoting Thompkins, 476 F.3d at 1306)
(emphasis added); see also Michael T. Andrew, Executory Contracts in
Bankruptcy: Understanding “Rejection,” 59 U. Colo. L. Rev. 845, 848 (1988). So
the financial obligation is no more, but the debtor may retain other obligations or
agreements depending on what else is contained in the rejected contract.
Here, when the Chapter 7 trustee failed to assume the Agreement within 60
days, it was rejected by operation of law. The bankruptcy court’s order on August
26, 2014, then discharged Medley “from all debts that arose before the date of the
order for relief.” 11 U.S.C. § 727(b). This included Medley’s debt to DISH. “A
Chapter 7 discharge relieves the debtor of personal liability; it does not nullify a
prepetition agreement or render any agreement unenforceable.” Maj. Op. at 7
(citing Johnson v. Home State Bank, 501 U.S. 78, 83 (1991)). Medley’s consent to
be contacted by DISH is not a personal liability of Medley, so the consent
provision might appear to be no more affected by the discharge order than by the
Agreement’s rejection.
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But here is the reason that I write: the consent provision did not grant DISH
an unrestricted right to contact Medley for any reason, for eternity. Medley only
authorized DISH “to contact [her] regarding [her] DISH Network account or to
recover any unpaid portion of [her] obligation to DISH, through an automated or
predictive dialing system or prerecorded messaging system.” After the Agreement
was rejected, the entirety of Medley’s account with DISH was her outstanding
obligation for unpaid fees and early termination. And after Medley’s personal
liability was discharged, she did not have any obligation to DISH, let alone an
unpaid obligation. That may mean that under the terms of the contract DISH was
not permitted to call her.
* * *
The parties assumed that the critical question was whether Medley could
unilaterally revoke her consent, and the Court correctly says no. But this correct
holding—that rejection of a contract is not the same as dissolution of a contract—
need not invite phantom obligations that can never dissipate. In my view, the
parties ignored the logical follow-on question: whether, given the discharge of
Medley’s debt, DISH’s phone calls were permitted by the consent provision. Had
Medley raised this argument, it is not clear how we would have resolved it; that
would require answering several unbriefed questions of both statutory and
contractual interpretation. It may well be that because Medley no longer had any
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debt, the phone calls were not permitted. Or it could be that DISH had some kind
of TCPA or contractual defense against liability for a good-faith error. But the
parties did not gather evidence on these issues or brief them, and I see no reason to
depart from the general rule that we do not resolve legal issues unless they are
properly raised by the parties. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (to evaluate an argument that has not been presented
“would undermine the very adversarial nature of our appellate system”); see also
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (federal appellate courts do not
generally resolve issues not considered below). Still, it is important to note that the
analysis need not always end where the parties left it here.