Note: Sutherland Associate Wilson G. Barmeyer contributed to this article.
What constitutes valid consent under the Telephone Consumer Protection Act?
A hot issue in TCPA litigation is the scope of consent necessary to place automated calls to consumers where the consumer has provided a cell phone number to a company in connection with a specific transaction or application. Guidance from the Federal Communications Commission (“FCC”) and several recent court decisions emphasize that a consumer’s consent is not unlimited; where a consumer provides a cell phone number in connection with a specific transaction thereby giving consent to be contacted, the FCC and some courts take the position that the scope of the consent is limited to communications directly related to the specific transaction for which the consent was provided.
In an amicus brief filed in support of the plaintiff in a case pending before the Second Circuit Court of Appeals, Nigro v. Mercantile Adjustment Bureau, LLC, No. 13-1362 (2nd Cir. Amicus Brief filed June 30, 2014), the FCC has taken the position that a consumer’s consent to be contacted by cell phone is not unlimited.
In Nigro, the plaintiff contacted the power company to request termination of electric service in the apartment of his recently deceased mother‑in‑law, and he provided a cell phone number where he could be contacted. More than a year later, a collection agency made several calls to the plaintiff’s cell phone using an autodialer in an effort to collect on the mother-inlaw’s delinquent account. The plaintiff claimed that he had not consented to the collection calls. The district court disagreed and granted summary judgment in favor of the defendant.
The district court relied on the FCC’s statement in its 1991 Rulemaking Order for the proposition 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.” 7 FCC Rcd at 8769 (¶ 30). The district court reasoned that the plaintiff “consented to calls regarding the subject of the transaction, namely the termination of [the] account,” which included any effort to collect on any account delinquency.
The FCC, however, has taken a narrower view of consent and disagrees with the lower court’s analysis. In its amicus brief filed in support of the plaintiff’s appeal, the FCC’s position is that although the plaintiff “presumably consented to receive calls regarding the termination of service…by providing his cell phone number,” the scope of that consent “did not extend to debt collection calls with respect to debts that did not arise ‘during the transaction’ in which [the plaintiff] provided his number.” The FCC emphasized that consent is “not unlimited.”1
Where a consumer has provided a cell phone number “for a limited purpose,” such as for “service calls only,” the scope of consent, according to the FCC, does not go “beyond that limited purpose.” The FCC relied principally on a 2005 Administrative Order regarding debt collection in which it ruled that prior express consent to be contacted by a creditor or a debt collector was deemed granted only if the number was provided “during the transaction that resulted in the debt owed.” ACA Order, 23 FCC Rcd at 563 (¶ 8) (2005). The FCC appears to be taking the position that a similar limitation on scope should apply in other circumstances as well.
Several lower courts have adopted the FCC’s position and have held that consent is context-limited. For example, in Kolinek v. Walgreen Co., 2014 WL 3056813 (N.D.Ill. 2014), a federal district court in Illinois reconsidered its earlier dismissal of a TCPA case and stated that the scope of a consumer’s consent “is dependent on the context in which it is given.” In that case, the plaintiff provided his cell phone number to a pharmacy for “identity verification purposes.” The court found that this did not constitute consent to receive automated calls regarding prescription refills. Id. In so holding, the court relied on the FCC’s ruling in In re Group Me/Skype Communications S.A.R.L. Petition for Expedited Declaratory Ruling, FCC Rcd. 14–33, 2014 WL 126074 (Mar. 27, 2014) (“GroupMe”). In that Order, the FCC stated that a consumer gives “prior express consent” when she provides her cell phone number to the private organizer of a text messaging group “agree[ing] to receive associated calls and texts.” While this constituted consent to receive text messages from both the provider and the group members, the scope of the consent was limited to texts “only regarding that particular group.” Id. Based on GroupMe, the court in Kolinek concluded that “the scope of a consumer’s consent depends on its context and the purpose for which it is given” and that “[c]onsent for one purpose does not equate to consent for all purposes.”
Where a customer has given a phone number as contact information for a particular account, a number of courts have held that providing the phone number constitutes consent to be contacted for all purposes regarding that account. That is not to say the consent is unlimited for any and all purposes, but that the consent is not limited to a specific purpose and applies more broadly to calls made in relation to the account or transaction at issue. In Sartori v. Susan C. Little & Associates, P.A.,__ Fed. Appx. __, 2014 WL 3302588 (10th Cir. July 9, 2014), the Tenth Circuit affirmed the lower court’s dismissal of TCPA allegations where the evidence established that the plaintiff provided a creditor with his cell phone number as a contact number for his account. According to the court, this scenario falls cleanly within the FCC rule that automated or prerecorded calls are permissible when made “to wireless numbers provided by the called party in connection with an existing debt.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 564 (2008) (“2008 Order”). The court also rejected the plaintiff’s argument that consent for collection calls must be in writing.
Similarly, a plaintiff was deemed to have consented to receive automated calls from a debt collector when he provided a cell phone number to a hospital in connection with medical services. Penn v. NRA Group, LLC, 2014 WL 2986787 (D.Md. 2014). The court rejected the plaintiff’s argument that he did not consent to debt collection calls when he provided the number to his doctor. Instead, the court relied on the FCC ruling stating that providing a cell phone number to the service provider/doctor is the same as providing it to a third-party collector working on behalf of the service provider. 2008 Order 23 FCC Rcd. 559. The plaintiff’s provision of his cell phone number in conjunction with patient registration, therefore, constituted prior express consent for the debt collector operating on the hospital’s behalf to contact the plaintiff on his cell phone in an effort to collect on the related debt.
Is consent unlimited? According to the FCC, the answer is no. According to some courts, the answer is broader but depends on the facts. The issue of consent has and will continue to develop in TCPA litigation and before the FCC. The cases highlighted above illustrate that the scope of any consent will continue to be a contested issue and is largely fact-dependent. Another unresolved issue is the question of the consumer’s right to revoke consent. (Sutherland’s Legal Alert: If Consent is Not Forever, What Constitutes Revocation). More broadly under the TCPA, companies are continuing to adjust to new FCC rules that went into effect in late 2013, which set a high standard for the type of consent required for marketing calls made to cell phones. (CSutherland’s Legal Alert on the FCC rules for marketing calls.) With the new FCC rules and ongoing litigation risk, companies should obtain written consent where appropriate and maintain adequate records of the specific details of that consent.
1 See also Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, 27 FCC Rcd 15391, 15397 (¶11) (2012) (consent“not unlimited”).