Monday, April 28, 2014

FYI: Cal Fed Ct Holds Providing Cell Phone Number to Business Constitutes "Prior Express Consent" Under TCPA, Including as to Contractors

Thursday, February 6, 2014

The U.S. District Court for the Central District of California recently held that, where a consumer provides a cell phone number to a business, that act constitutes "prior express consent" to receive autodialed calls at that number -- including from the business’ contractors -- for the purposes of the federal Telephone Consumer Protection Act. 

A consumer booked a flight with an airline, via the airline's website.  The consumer provided her cell phone number when prompted to do so.  A travel service working with the airline then sent the consumer a text message to the plaintiff’s cell phone, inviting her to reply "yes" to receive flight notification services by phone.  The consumer did not reply, and neither the airline nor the travel service sent additional messages. 

The consumer then filed suit, alleging that the airline violated the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227, et seq. ("TCPA"), and seeking to represent a class of people who received similar text messages from the travel service. 

As you may recall, the TCPA among other things makes it unlawful for any person to make a call using an automatic dialing system to a cellular telephone, without the recipient's "express consent."  47 U.S.C. Sec. 227(b)(1)(A). 

The travel service moved for summary judgment, arguing that the consumer's act of voluntarily providing her cell phone number to the airline constituted "express consent" for purposes of the TCPA.   The plaintiff in turn argued that she did not voluntarily provide her cellphone number, but instead, that the airlines website told her she had to provide a telephone number in order to book her flight, and she was not informed or aware that the airlines would consider her act of supplying her cellphone number to constitute consent to receive text messages.

More specifically, the plaintiff argued that, at most, the act of providing a telephone number on a form provided by a company during a business transaction conveys “implied consent” to be called, but not the “express consent” required by 47 U.S.C. § 227(b)(1)(A).  She also argued that the issue of consent is a question of fact, not law, and points to evidence that a person booking a flight on the airlines website cannot complete the transaction without providing a telephone number, and would not naturally assume that simply by doing so, she was expressing consent to be called at that number by an automatic telephone dialing system.

The court scrutinized the language of a 1992 Federal Communications Commission ("FCC") order implementing the TCPA, which provides that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be calledat the number which they have given, absent instructions to the contrary," and to legislative history cited by the FCC in the 1992 order.  In re Rules & Reg's Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752, 8769 Para. 31 (1992). 

The court also examined a 2008 FCC order also implementing the TCPA, in which the FCC “clarif[ied] that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.”  In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559  ¶ 1 (2007).

In addition, the court held that even if the Ninth Circuit’s reference in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009), to the dictionary definition of “express consent” was intended to express disagreement with the FCC’s interpretation, the Ninth Circuit had no power to reject the FCC rule in the course of an appeal from a judgment denying a TCPA claim.  See U.S. West Communications, Inc. v. Hamilton, 224 F.3d 1049, 1054 (9th Cir. 2000).  The court reasoned that, under the Administrative Orders Review Act (also known as the “Hobbs Act”), the exclusive jurisdiction of the courts of appeals to review the validity of FCC rulings may be invoked “only by filing a petition for review of the FCC’s final order in a court of appeals naming the United States as a party.”  Id. (citation and internal quotation marks omitted); 28 U.S.C. § 2344.

Applying the FCC’s 1992 order, the court determined that "[u]nder the FCC's definition, it is undisputed that [the consumer] 'knowingly release[d]' her cellphone number to [the airline], and by doing so gave permission to be called at that number..." 

Accordingly, the court held that the plaintiff "consented to be called be contacted on her cellphone about flight-related matters," and that therefore the "single text message sent to [the consumer's] cellphone fell within the scope of her 'prior express consent.'"

The court also held that the plaintiff’s consent extended from the airlines to the travel service.  In the court’s words, “[n]o reasonable consumer could believe that consenting to be contacted by an airline company about a scheduled flight requires that all communications be made by direct employees of the airline, but never by any contractors performing services for the airline.”

The Court therefore entered summary judgment in favor of the travel service. 

Eric Tsai
McGinnis Wutscher Beiramee LLP
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