After the FCC’s omnibus ruling drastically increasing the scope of the TCPA’s definition of autodialer, TCPA litigation has become a fight about consent. This has resulted in plaintiffs creating novel theories of consent–that it only applied to certain calls, or at certain time periods, etc. If adopted, such a rule would create a headache for any company that contacts their customer by phone–forcing them to ask did the customer consent to this call?
On Thursday, October 29, 2015, the Ninth Circuit issued an opinion disagreeing with this theory. The Court affirmed summary judgment of a proposed class action accusing PayPal of violating the Telephone Consumer Protection Act by sending users unsolicited text messages, following a hearing in which a judge said the claims were among the “silliest” he’s encountered. Opinion is available here: Roberts v. Paypal.
Plaintiff David Roberts had argued that when he gave the online payment site his phone number, he wasn’t giving it consent to send him a welcoming text message, which he said fell outside a Federal Communications Commission provision that allows businesses to send texts that are “normal business communications.” In their memorandum released Thursday, the circuit justices disagreed.
“Roberts’ contention that the FCC’s 1992 interpretation limits the consent expressed by release of a phone number to ‘normal business communications’ or ‘normal, expected or desired communications,’ is without merit … ,” the Ninth Circuit memorandum states. “[I]t is unclear how the text message at issue could be anything other than a normal business communication.”
Businesses who contact their customers by phone should rejoice–and hope that this common sense approach finally establishes that consent is consent in the context of the TCPA.