California Court Defines “Prior Express Consent” under the TCPA

A United States District Court for the Central District of California recently ruled that a plaintiff who provided her telephone number to purchase an airline ticket gave “prior express consent” within the meaning of the Telephone Consumer Protection Act (“TCPA”) to be contacted by or on behalf of the airline.  The action involved an airline passenger’s receipt of a text message from the airline’s independent contractor, asking the passenger if she would like to receive text message notifications concerning her flight.  Relying on a 1992 ruling by the Federal Communications Commission (“FCC”), the Court determined that the plaintiff, “in effect,” had given her consent to receive the text message at issue within the meaning of the TCPA.

The Court’s Ruling

On December 24, 2012, the plaintiff in the action booked an airline flight online.  In doing so, she was required to, and did indeed provide, a telephone number through which she could be contacted.  On January 14, 2013, the plaintiff received one text message from the airline’s independent contractor, asking if the plaintiff would like to receive updates concerning her flight.  The plaintiff never responded, but instead filed an action against the airline and its independent contractor.  In granting summary judgment to the defendants, the Court relied heavily on the reasoning of the FCC’s order in an earlier rulemaking proceeding concerning implementation of provisions of the TCPA.  In that order, the FCC held 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.”  Based on this language, the Court ruled that when the plaintiff provided her cell phone number upon booking her flight, she “gave permission to be called at that number” and, impliedly, to receive text messages at that number.  The Court also ruled that the FCC’s 1992 order referenced above also protected the airline’s independent contractor, the company that actually sent the text message at issue on behalf of the airline, from liability under the TCPA.

In arriving at its decision, the Court declined the plaintiff’s request to extend the Ninth Circuit’s reasoning in Satterfield v. Simon & Schuster, Inc. to the facts in her case.  In Satterfield, the Ninth Circuit Court of Appeals stated that “[e]xpress consent is ‘[c]onsent that is clearly and unmistakably stated.’”  The Court declined to apply this sentence from Satterfield to the case at bar because although the Ninth Circuit did provide a dictionary definition of “express consent,” the ruling in Satterfield ultimately had nothing to do with the issue of consent. 

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The Court’s Ruling and the FCC’s New Rules

We have previously warned that the new TCPA rules promulgated by the FCC went into effect on October 16, 2013.  (See New TCPA Rules Effective October 16, 2013).  The new rules mandate that “unambiguous written consent” be provided by consumers before any telemarketing call may be placed or any text message may be sent.  Please note that the Central District of California’s ruling does not change these requirements (because the text message at issue was sent prior to October 16, 2013 and was informational in nature).    

Protect Yourself Against TCPA Class-Action Claims

The Court’s decision concerning “prior express consent” is helpful to the telemarketing industry with regard to calls placed and text messages sent pre-October 16, 2013.  In addition, because the text message at issue was informational only, even in a post-October 16, 2013 posture, the Court’s ruling would likely be the same (because only “prior express consent”, not “prior express written consent,” is required under the TCPA rules for purely informational calls or texts).  As such, the Court’s decision is of some importance in the world of post-October 16, 2013 telemarketing.  We would like to reiterate how important it is that businesses understand the various provisions of the TCPA in order to protect against being served with legal process.

If you are interested in learning more about this topic, or if you have been named in a lawsuit relating to the TCPA, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900. 

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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