This article first appeared on TCPAland and is republished here with permission.

The prior express consent granted when a consumer voluntarily provides their phone number has its limits.  The recent ruling denying summary judgment in Walintukan v. SBE Entm’t Grp. LLC 2018 U.S. Dist. LEXIS 88036 (N.D. Cal. May 24, 2018) is a good example of the parameters of this type of consent.

In Walintukan, the Plaintiff purchased online tickets for a concert at Create Nightclub in L.A., and provided his phone number as part of the purchase.  Several months later, Defendant sent Plaintiff two text messages promoting other events at the club, and got themselves sued in a nationwide TCPA class action.

Defendant moved for summary judgment on the basis that Plaintiff consented to the texts by providing his phone number when purchasing tickets.  The court rejected the argument, finding that the scope of consent is defined by the “transactional context” in which Plaintiff provided his phone number.  Because the subsequent texts did not relate to the event for which Plaintiff had bought tickets, but instead were for different events and different artists (albeit at the same club), they were not within the scope of the presumed express consent provided by Plaintiff.

Walintukan isn’t groundbreaking, but it’s a good reminder of the limits of presumed express consent.  Of course, courts have reached different conclusions under this same rule when the texts are more closely related to the transaction at issue.  So, when a customer provides a restaurant his or her phone number when making a reservation, a text by the restaurant with links to specials for that night falls within the scope of the consent provided.  See MacKinnon v. Hof’s Hut Restaurants, Inc.,  2017 WL 5754308 (E.D.Cal. 2017).  But that consent has its limits – and as Walintukan shows – the more attenuated the connection between the original transaction, and subsequent text, the more likely it is that the subsequent message falls outside the bounds of the consent provided.

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