Alabama District Court Grants Pharmacy's Motion to Dismiss, Holding Plaintiff's Claim Barred Because She Provided Her Cell Phone Number Upon Request

Pinkard v. Wal-Mart Stores, Inc., No. 3:12-cv-02902-CLS, 2012 WL (N.D. Ala. Nov. 9, 2012) After dropping off a prescription with Defendant, Plaintiff was asked for several pieces of information, including her cell phone number. According to Defendant, the number was needed "in case there were any questions that came up." Defendant did not explicitly seek permission to send Plaintiff text messages, nonetheless, it sent an undisclosed number within hours of Plaintiff leaving her prescription with Defendant. When Plaintiff asked Defendant why she was receiving the text messages, Plaintiff was advised that Defendant automatically enrolls individuals filling prescriptions at its pharmacy into a program providing enrollees with Defendant "related" text messages on their cell phones. Plaintiff filed suit, alleging that the text messages violated the TCPA. Defendant moved to dismiss the Complaint, arguing that the TCPA claim was barred by the doctrine of prior express consent because Plaintiff provided Defendant with her cell phone number upon request. Noting that while the TCPA does not define the term "call," the court also noted that the FCC has defined the term to encompass "'both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls,' i.e., text messages." The court also noted that "'[t]he TCPA is silent on the issue of what form of express consent--oral, written or some other kind--is required.'" While Plaintiff argued that the FCC requires express consent be in writing, the FCC's ruling established a 12-month waiting period, and does not become effective until October 16, 2013. Thus, the rule was not in effect at the time of the alleged violation. The court also noted that "although the TCPA does not define 'express consent' the FCC interprets that term to encompass a situation where an individual voluntarily divulges her telephone number," and because "that interpretation is entirely reasonable, it is entitled to deference . . . By her complaint's own admission, Plaintiff provided her telephone number to defendant at defendant's request. Thus, Defendant's Motion to Dismiss is due to be granted." 

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