Northern District of California Court Holds That Providing Cell Phone Number Supplies Express Consent Necessary to Defend TCPA Text Message Action

Judge Phyllis J. Hamilton of the Northern District of California, in Roberts v. Paypal, Inc., 2013 WL 2384242 (N.D. Cal. May 30, 2013), has added to the growing list of cases which hold that when a consumer supplies their cellular telephone number to a business, that consumer has supplied the necessary prior express consent to receive certain calls otherwise prohibited by the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227(b)(1). In the absence of prior express consent, or other extenuating circumstances, the TCPA prohibits, among other things, telephone calls to a cellular telephone which use an automatic dialer and/or an artificial or pre-recorded voice. The statute provides consumers a private right of action and the potential for an award of statutory damages per call as well as actual damages. The ease with which the TCPA can be violated and the potentially large damage awards available under the TCPA's civil remedy has spawned a massive number of class actions and consumer claims against businesses which rely on the telephone to contact their customers or to solicit new business. In 1992, the Federal Communications Commission ("FCC") issued rules and regulations regarding the issue of "prior express consent," under the TCPA which seemed to take some of the sharp edges off the statute, by stating that "persons who knowingly release their phone numbers have in effect given their invitations or permission to be called at the number which they have given, absent instructions to the contrary." See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 7 F.C.C.R. 8752, 8769 (Oct. 16, 1992). Furthermore, the FCC has also issued rules and regulations with respect to the applicability of the TCPA to text messages sent to cellular telephones by way of an automatic dialer, declaring that the TCPA does encompass such communications. See 18 F.C.C.R. 14014, 14115 (July 3, 2003). In the ensuing years courts have struggled to develop a coherent theory with respect to the TCPA on the issue of whether the FCC's interpretation of the TCPA's prior express consent provision is the proper interpretation of the statute. One such case was Pinkard v. WalMart Stores, Inc., 2012 WL 5511039 (N.D. Ala. Nov.9, 2012) which adopted the FCC's logic in both declarations, and held that because "[b]y her complaint's own admission, plaintiff provided her telephone number to defendant at defendant's request," WalMart's motion to dismiss plaintiff's TCPA claim should be granted. Id. at 6 . In Roberts v. Paypal, Inc., 2013 WL 2384242 (N.D. Cal. May 30, 2013), Judge Hamilton adopted the reasoning of the FCC Declarations and the Pinkard opinion and held that, regardless of the terms and conditions of the Plaintiff's agreement with Paypal or whether such agreements constitute an adhesion contract, the simple fact that the Plaintiff supplied his cellular telephone number to Paypal prior to receiving the text message on which the Plaintiff's claim was based entitled Paypal to summary judgment in its favor with respect to the Plaintiff's TCPA claim. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Posted in: TCPA
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