The Telephone Consumer Protection Act: Do You Have the Correct Consent?

This article is Part 2 of a two-part series covering the current state of The Telephone Consumer Protection Act (TCPA). Part 1 published in Legaltech News in June.

The content of calls or texts must be reasonably related to the purpose for which the consumer provided consent. Businesses making the calls or sending the texts have the burden of proving not only that consent was obtained—an analysis that is often fact-specific and relies on exemplary record keeping—but also that the scope of consent covers the communications.

For example, in Fober v. Management and Technology Consultants, LLC, the plaintiff, as part of enrolling for health insurance, completed and signed a form on which she provided her phone number and authorized her insurer to disclose her information for “purposes of treatment, payment and health plan operations, including but not limited to … quality improvement….” The insurer assigned the plaintiff to a medical group and a primary care physician. The medical group contracted with a vendor to survey its patients. After the plaintiff visited the physician, the vendor called the plaintiff to inquire about the quality of her care.

The Ninth Circuit held that the plaintiff had agreed to receive calls about the quality of her health plan when she completed the enrollment form, and, in terms of substance, the vendor’s calls were within the scope of the consent given. The plaintiff argued that her consent extended only to calls concerning the quality of the insurer’s services and not to calls concerning the quality of the physician’s services. But the Ninth Circuit ruled that the consent language in the enrollment form swept broadly and included any call designed to improve the health plan.

The court noted that it takes little imagination to see how that feedback might assist in improving the quality of the plaintiff’s health plan generally. The fact that the vendor, rather than the insurer itself, made the calls did not matter. When the plaintiff authorized her insurer to disclose her phone number for certain purposes, she necessarily authorized someone other than the insurer to make calls for those purposes.

In another case involving a consumer loyalty program, the Seventh Circuit rejected the plaintiff’s argument that she had agreed to receive discount offers but no other promotional messages when she signed up for frequent buyer cards with the defendant retailer. In Blow v. Bijora Inc., the retailer’s loyalty programs included various ways consumers could provide consent, including by providing their cellphone number to the retailer in-store, texting to a number posted by the retailer or completing an application for a retail card. The plaintiff provided her cell number on a number of occasions, including when she applied for the VIP discount card and subsequently when she texted to the retailer’s SMS number to opt in to the text club.

The court concluded that because the plaintiff had provided her cellphone number “not on a generic form” but to receive “exclusive information and special offers,” she gave her consent to be contacted at that number.” Moreover, “[b]ecause the texts she received were reasonably related to the purpose for which she provided her cellphone number, … [plaintiff] provided prior express consent for the text messages.”

Consent to receive mobile communications related to one consumer loyalty program may not translate to consent for another program, however — even for affiliated companies. In Hoover v. Sears Holding Corp., the plaintiff conceded that he consented to receiving text messages from K-Mart by responding to an opt-in text message, but alleged that he did not consent to receiving messages from Sears stores and that his consent to the K-Mart messaging program was insufficient to constitute consent for the Sears stores’ messages. The New Jersey federal court refused to grant the retailer’s motion to dismiss plaintiff’s TCPA claims, rejecting the company’s argument that when the plaintiff signed up to receive promotional messages and discounts from a subsidiary, he consented to receive those same types of messages from another store owned by the same parent company.

In another recent case that has implications for businesses in consumer-facing industries, the Eastern District of California refused to jettison a TCPA case in which the plaintiff initiated contact with the defendant restaurant company to receive a text coupon, finding that the plaintiff’s initial text did not constitute consent to receive subsequent mobile advertising communications. In Larson v. Harman Mgmt. Corp., the plaintiff texted “BURGER” to the defendant’s SMS short code in order to receive a coupon for a free product. In addition to the desired coupon, he received a text informing him that he was signed up for the company’s mobile alert program, which could include 30 messages a month, and that he could opt out by texting “STOP.” The plaintiff did not opt out and so continued to receive texts for four more years. He then filed a putative class action alleging that the subsequent messages were unauthorized because they were not related to his original text.

The district court rejected the defendant’s argument that, by initiating contact via text and thereafter failing to opt out, the plaintiff had provided the requisite prior express consent to receive mobile alerts. The court found that at least some of the subsequent texts the plaintiff received constituted advertising communications because they “plausibly appear to both advertise the availability of and encourage the purchase of particular goods at A&W Restaurants,” and that the “BURGER” text that started it all was insufficient to satisfy the requirement of prior express written consent. While it was “in writing,” the text “neither included his signature nor clearly authorizes defendants to deliver advertisements or telemarketing messages using an automatic telephone dialing system.”

Conclusion

The starting point of the consent inquiry is always this: Did the consumer provide his or her telephone number, and if so, what is the content and purpose of the message? If the context is a business communication that is more customer-service oriented than marketing, then written consent may not be needed, and the only hurdle may be establishing that the message falls within the scope of the business transaction in the first instance. The jurisdiction, judge and industry may well be factors that influence the court’s decision on these issues, and very experienced TCPA attorneys are crucial to getting the defenses right in the initial pleadings submitted to the judge.