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Consent and the Telephone Consumer Protection Act

Michael Agruss

Written and Reviewed by Michael Agruss

  • Managing Partner and Personal Injury Lawyer at Mike Agruss Law.
  • Over 20 years of experience in Personal Injury.
  • Over 8000+ consumer rights cases settled.
  • Graduated from the University of Illinois Chicago School of Law: Juris Doctor, 2004.

The Telephone Consumer Protection Act (“TCPA”) can be difficult to understand, and judges have interpreted lawsuits against potential violators of the TCPA with some wide differences of opinion. The TCPA restricts telephone solicitations, the use of automated telephone equipment, and unsolicited advertisements. Specifically, the TCPA limits the use of automatic dialing systems, prerecorded voice messages, unsolicited text messages, and junk faxes. One frequent point of contention, which companies that practice mass text spamming are prone to exploit, is what constitutes consumer consent.In a recent text message case from Alabama, Pinkard v. Wal-Mart Stores, Inc., the judge sided with the defendant, Wal-Mart, in a disturbing ruling that said a woman giving her phone number to the Wal-Mart pharmacy (at their request, in case anything happened regarding her prescription) equaled consenting to receive spam text messages about various Wal-Mart services. This decision runs counter to most courts on TCPA spam calling, and will likely face scrutiny in appellate court. Because the Federal Communications Commission, and some courts, have interpreted the term “call” to encompass text messages (sent from computer systems, not automated dialing machines), in this case the judge decided when Ms. Pinkard voluntarily gave her phone number out, she was agreeing to receive “calls” pitching Wal-Mart services.In February of 2012, the FCC clarified that consent to receive auto-dialed text messages must be in writing; this new rule was too late to help Ms. Pinkard. In a later case, Tharsher-Lyon v. CCS Commercial, the court ruled: “Giving out one’s phone number . . . is not ‘express’ consent to besiegement by automated dialing machines. One ‘expresses’ consent by, well, expressing it: stating that the other party can call, or checking a box on form or agreeing to terms of service that explicitly permit automated telephone contact.” In another decision, in the Ninth Circuit, “consent” as defined by the TCPA “is clearly and unmistakably stated.” Satterfield v. Simon & Schuster.In another case, where the court ruled in favor of consumer rights (Jiffy Lube International, Inc. Text Spam Litigation), several plaintiffs in the suit had given the company their phone on an invoice, for oil changes. Jiffy Lube sent these customers text message ads, and the court denied the defendant’s request to dismiss or refer the case to arbitration. The court decided no express consent had been “clearly and unmistakably stated.” The texts Jiffy Lube sent out were not related to the oil changes, and were instead, “a tort action arising from a completely separate incident.” 847 F.Supp.2d 1253 (S.D. Cal. Mar. 9, 2012).So, what should you do when you get a robocall or an unsolicited text message? Hang up the phone. Do not press 1 or any other numbers to get off the list. Then, contact Mike Agruss Law, for a free consultation. The Federal Trade Commission has stopped billions, yes billions, of robocalls in the last two years. Mike Agruss Law, will do the same for you. We will aggressively enforce the law to stop robocalls and unsolicited text message. Not only will we stop the calls and text messages, but you may be entitled to money damages, too. Damages in TCPA cases range from $500.00 – $1,500.00 per call or text.

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