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August 31, 2017 Articles

Calls, Faxes, and Texts: Prior Consent under the TCPA

Discussing recent cases addressing the issue of consent to be contacted under the TCPA.

By Angela Sabbe and Zach Merritt – August 31, 2017

Obtaining prior consent of individuals who are called, faxed, and/or texted—or, at a minimum, the practices of obtaining prior consent—is a key point of contention in Telephone Consumer Protection Act (TCPA) cases. This article will discuss the TCPA, recent court rulings, and pending cases that highlight the importance of consent with regard to the TCPA.

Telephone Consumer Protection Act, 47 U.S.C. § 227
The TCPA was passed in 1991 as an amendment to the Communications Act of 1934. In general, the law limits telemarketing solicitations and prohibits any individual or company from contacting an individual via their

  1. cell phone, using any “any automatic telephone dialing system or an artificial or prerecorded voice” (section 227 (b)(1)(A)(iii));
  2. residential landline, using “an artificial or prerecorded voice . . . without the prior express consent of the called party” (section 227 (b)(1)(B)); or
  3. telephone facsimile machine, using “any telephone facsimile machine, computer, or other device to send . . . an unsolicited advertisement” (section 227 (b)(1)(C)).

The statutory damage per violation can be as much as $500 (or $1,500 if the violation is determined to be willful).

Consent for Telephone Calls
In Espejo v. Santander Consumer USA, Inc., Nos. 11 C 8987 and 12 C 9431, 2016 WL 6037625 (N.D. Ill. Oct. 14, 2016), the plaintiffs claimed that Santander contacted them via their cell phones regarding their outstanding auto loans without first obtaining consent to do so and thereby violated the TCPA. Santander, for its part, claimed that it received consent when its employees confirmed the plaintiffs’ contact information. The plaintiffs countered that there was an “utter lack of clarity” in Santander’s records regarding when the plaintiffs first consented to be contacted. However, when arguing for class certification, the plaintiffs cited these same records as the source for class ascertainability, including if and when consumers consented to be called.

The court disagreed with the plaintiffs’ argument, noting that “Plaintiffs themselves . . . challenge the content, clarity, accuracy, and completeness of the very records on which [Plaintiffs] would base class certification.” Id. at *8. Because Santander’s call data did not contain sufficient information, the court stated that the difficulty in concluding that a call was made without obtaining prior consent “would invariably lead to individualized factual disputes regarding whether consent was nevertheless previously obtained.” Id. at *9. The court further noted that this was especially true where the defendant has a policy and practice of obtaining consent from the consumers it contacts. As such, class certification in Espejo was denied.

Consent for Texts
In Van Patten v. Vertical Fitness Group, LLC, No. 14-55980, 847 F.3d 1037 (9th Cir. 2017), the plaintiff provided his cell phone number when signing up for a gym membership, a membership he later canceled. The plaintiff argued that the cancellation of his gym membership served as a revocation of his consent to be contacted. The plaintiff also argued actual harm, but the defendants, citing Spokeo v. Robins, 136 S. Ct. 1540 (2016), argued that the plaintiff had not proven a concrete injury. While the argument ultimately proved moot in this case, the Ninth Circuit found that no “additional harm beyond the one Congress has identified” in the TCPA must be proven. Id. at 1043. The determination of harm was moot because the court found that the plaintiff had given consent to be contacted by providing his cell phone number, adding that the consumer’s revocation of consent must “clearly express that he or she does not want to receive the messages or calls.” Id. at 1041. Therefore, although he canceled his gym membership, the plaintiff’s TCPA claim fell short because he had not expressly conveyed that he no longer consented to receiving messages or calls. As such, summary judgment for the defendants was granted.

Consent for Faxes
Under the TCPA, it is illegal to send unsolicited advertisements to fax machines. The Junk Fax Protection Act of 2005 amended the TCPA to provide an exception when there is an existing business relationship between the parties and to require, among other things, a notification on the first page of the unsolicited fax alerting the recipient how to request an end to the unsolicited faxed advertisements. In 2006, the Federal Communications Commission (FCC) issued a rule requiring the notification on not only unsolicited faxes but also solicited faxes.

In Bais Yaakov of Spring Valley v. Federal Communications Commission & U.S.A., No. 14-1234, 852 F.3d 1078 (D.C. Cir. 2017), the D.C. Court of Appeals found that the FCC could not require the inclusion of the opt-out notifications on solicited (i.e., consented) fax advertisements.

Cases to Watch: Definition of Autodialer
In 2015, the FCC issued an order that interpreted the definition of autodialer prohibited under the TCPA (automatic telephone dialing system or ATDS) to include any equipment that could be used to create or store and dial random or sequential phone numbers, regardless of whether that functionality was used by a company when making calls.

In October 2016, the D.C. Circuit heard arguments in ACA International v. FCC, No. 15-1211, opposing the FCC’s 2015 order. The arguments and questions from the court focused on the potential capabilities (i.e., capacity) of the equipment versus the uses of the equipment—specifically, whether calls made using equipment in which the equipment’s ability to dial random or sequential numbers had been turned off constituted a violation of the TCPA. The discussion also turned to whether consent is attributed to the person giving consent or to the phone number at the time consent was given. The court’s ruling on this point will be particularly impactful on future arguments of not only liability but also ascertainability. A decision in the case is pending but expected in 2017.

The Ninth Circuit Court of Appeals in Jordan Marks v. Crunch San Diego, No. 14-56834 (9th Cir. Dec. 6, 2016), also heard oral arguments in 2016 regarding the definition of an ATDS. Similar to the discussion in the D.C. Circuit, the arguments and questions from the court in this case focused on potential versus current capacity, the FCC’s authority to expand the definition of autodialer, and whether the interpretation in the 2015 FCC order was too broad. A decision in the case is pending, but the court may wait for the ruling in the ACA International matter.

Angela Sabbe is an associate director and Zach Merritt is a consultant at Navigant.

Navigant Consulting is the Litigation Advisory Services Sponsor of the ABA Section of Litigation. This article should be not construed as an endorsement by the ABA or ABA Entities.

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