A consumer who voluntarily provides a cell phone number in the course of a transaction has given “prior express consent” under the Telephone Consumer Protection Act (TCPA) to receive text messages from the entity to which the number was given, federal courts in California and Florida recently ruled.
In Baird v. Sabre, Inc., et al., the plaintiff had provided her cell phone number to an airline in booking a flight on the airline’s website. Subsequently, she received a text message from the defendant, the airline’s vendor, offering flight notification services. In Murphy v. DCI Biologicals Orlando, LLC, et al., the plaintiff had provided his cell phone number to a blood collection center on a donor information sheet in connection with making a paid blood donation. He later received an initial text message from the defendant, a company with a controlling ownership interest in the center, notifying him that unless he replied to stop them, he would receive further text messages. After the plaintiff allegedly failed to reply, he received a second text message offering him a payment for another blood donation.
Both plaintiffs alleged that the text messages they received violated the TCPA provision that makes it unlawful to make autodialed or prerecorded non-emergency calls to a cell phone number unless the call is made with “the prior express consent of the called party.” In a 1992 order, the Federal Communications Commission (FCC) ruled that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” (emphasis added)
In ruling that the text messages at issue did not violate the TCPA, both the California federal court in Baird [enhanced version available to lexis.com subscribers], and the Florida federal court in Murphy [enhanced version available to lexis.com subscribers], deferred to the FCC’s interpretation. (The Florida federal court observed that the FCC’s interpretation was binding under the Hobbs Act, which gives exclusive jurisdiction to the federal courts of appeals to review the validity of FCC rulings.)
Both courts found that by voluntarily providing their cell phone numbers, the plaintiffs had given “express consent” to be contacted by the defendants on their cell phones. While the court in Baird observed that the defendant who sent the text message was a different company from the airline, it stated that “no reasonable consumer” could believe that consenting to be contacted by an airline about flight-related information did not extend such permission to a vendor for the airline.
In Murphy, the court also rejected the plaintiff’s claim that the defendants had violated the TCPA’s time-of-day and other restrictions on “telephone solicitations.” According to the court, because the text messages sought to buy something from the plaintiff rather than sell something to him, they did not constitute “solicitations” under the TCPA.
Since the text message at issue in Murphy was sent in July 2012, it was not subject to the change in the FCC's rules that became effective on October 16, 2013, and requires prior express written consent for autodialed or prerecorded telemarketing calls to cell phone numbers. Such consent must be in an agreement that satisfies specified FCC requirements. Although the text message at issue in Baird also would not have been subject to the new FCC rules because it was sent in January 2013, the rules change does not affect autodialed or prerecorded “informational” non-sales calls to cell phone numbers such as the Baird text message. Such calls can still be made with only the consumer’s “prior express consent,” which can be written or oral.
We continue to see a high volume of class actions alleging TCPA violations. In part, this is because the penalties are draconian. Violations can yield damages of $500 per violation or actual damages—whichever is greater—with a tripling of damages for willful violations and unlimited class action liability.
Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws throughout the country, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending all manner of TCPA lawsuits, the Group has counseled a number of clients on establishing autodialing and monitoring protocols.
For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or firstname.lastname@example.org, John L. Culhane, Jr., at 215.864.8535 or email@example.com, or Mark J. Furletti at 215.864.8138 or firstname.lastname@example.org.
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