The TCPA - Prior Express Consent

by Burr & Forman
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While the TCPA does not define the phrase “prior express consent,” the FCC (vested with authority to promulgate rules to implement the TCPA) has defined it as consent provided by the consumer during the transaction resulting in the debt. According to the FCC, a specific example of such consent occurs when a consumer lists his or her cell phone number on a credit application seeking the number.

Though the FCC concludes that a request for a debtor’s cell phone number in a credit application need not disclose the purpose for which the number is sought, it has suggested that credit applications include a notification that the consumer consents to receiving autodialed and prerecorded message calls from creditors or their third party debt collectors at the cell phone number provided on the application.

Those encountering TCPA litigation may be potentially faced with argument that the FCC’s definition of the phrase “prior express consent” is inconsistent with the plain meaning of the phrase and, in reality describes “prior implied consent.” This same argument was advanced in the case of Leckler v. Cashcall, 554 F. Supp.2d 1025 (N.D. Cal. 2008). In Leckler, the court rejected the FCC’s declaratory ruling that “‘the provision of a cell phone number to a creditor, for example as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.’” The Court reached this conclusion by juxtaposing Black’s Law Dictionary’s definition of the term “express,” and phrase “express consent” with  that of “implied consent,” concluding that “prior express consent“ is expressly given in words or ‘direct and appropriate language’ explicitly stating that plaintiff consented to be called with an autodialer or prerecorded message.”

Though the court’s reasoning may appeal to some, the decision was subsequently vacated for lack of jurisdiction to review the FCC’s declaratory ruling. Specifically, the Hobbs Act, 28 U.S.C. § 2342 gives federal courts of appeals, not federal district courts, “‘exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . . all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47.’”

The FCC’s definition of the phrase “prior express consent” almost experienced a significant change on January 22, 2010, when the FCC issued a Notice of Proposed Rule Making (NPRM). The NPRM sought comment on whether the FCC should revise Sections 64.1200(a)(1) and 64.1200(a)(2) of the Code of Federal Regulations to provide that prior express consent under the TCPA must be in writing. Adoption of the proposed rule would have silently reversed the guidance provided in the FCC’s January 4, 2008, Order, permitting ADTS calls to wireless numbers where an individual provides his cell phone number on a loan application, and also prohibited oral consent.

Specifically, the NPRM proposed requiring that “prior express consent” be in writing, with such consent occurring only if it:

  1. Is obtained after clear and conspicuous disclosure that the purpose of the agreement is to authorize the seller to place prerecorded calls to such person.
  2. Is not obtained as a condition of purchasing any good or service;
  3. Evidences a willingness of the recipient of the call to receive calls that deliver prerecorded messages; and
  4. Includes the person’s telephone number and signature.

Entities ranging from the Federal Reserve, U.S. Department of Education, trade associations and companies representing major sectors of the U.S. economy voiced opposition to the NPRM. While comments to the NPRM were due in 2010, the FCC did not issue its ruling until February 15, 2012, stating, in part:

We note that many commentators expressed concern about obtaining written consent for certain types of autodialed or prerecorded calls, including debt collection calls, airline notification calls, bank account fraud alerts, school and university notifications, research or survey calls, and wireless usage notifications. Again, such calls, to the extent that they do not contain telemarketing messages, would not require any consent when made to residential wireline consumers, but require either written or oral consent if made to wireless consumers and other specified recipients

Thus, for the type of calls referenced above, the rule regarding “prior express consent” remains unchanged.

While the phrase “prior express consent” does not require that the consent be in writing, consent to be contacted on behalf of one creditor does not constitute consent to be contacted by other creditors, or their third party collectors (it is limited to the party to whom consent was given, or entities acting on its behalf).

Equally important is recognition that the burden of demonstrating “prior express consent” rests with the party defending a TCPA claim. This rule is based on a conclusion that those to whom “prior express consent” was given are in the best position to have records kept in the usual course of business showing consent, such as purchase agreements, sales slips, and credit applications.

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.

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