Have You Given Telemarketers Prior Express Consent Under the TCPA?

Under the Telephone Consumer Protection Act (TCPA), companies are now required to obtain “prior express written consent” before they can make telemarketing calls using an automated dialing system or an artificial or prerecorded voice to a wireless number or before calling a residential line by using a prerecorded voice. They can no longer rely on a “prior established business relationship” and companies will need to obtain explicit signed consent from current customers as well as potential customers. Additionally, the Federal Communications Commission (FCC) considered text messages to be “calls” under the TCPA, therefore prior express written consent is also required before sending text messages.

To have “prior express written consent” there must be a written agreement that is signed by the person who will be receiving the call or text. It must also have a “clear and conspicuous disclosure” that specifically authorizes the seller to send telemarketing communications by using automatic telephone dialing systems or artificial or prerecorded voices. It is also required that the disclosure note specifically that the person is not required to sign the agreement as a condition of purchase. There must also be authorization that a specific telephone number be used to contact the person providing the consent.

Consumers may use either an electronic or digital signature to sign the agreement. The consumer can “sign” the consent agreement by using a website form, email, voice recording, or keypad touch. The authorized calling party in the agreement should be identified clearly by the company. This is because the company has the burden of demonstrating that clear and conspicuous disclosure was provided and consent was unambiguously obtained if there are any questions regarding the consent.

A recent U.S. District Court case further defined what “prior express consent” means. In this case, Baird v. Sabre, Inc., the Judge said that the actions taken by the plaintiff were prior express consent to for the company to contact her via her cell phone and the defendant’s motion to dismiss was granted.

On a Hawaiian Airlines website a section entitled “Contact Information” required that at least one phone number be entered and the plaintiff entered her cellphone number. The defendant sent the plaintiff a text message inviting her to reply “yes” if she withed to receive flight notification services. The plaintiff did not respond and the defendant did not send her any more messages.

The plaintiff filed a lawsuit stating that the company violated the TCPA for sending an unsolicited text message. The defendant claimed that by providing her cellphone number the plaintiff gave consent. Plaintiff said that it was not consent since it was required for booking the flight online. When making its determination, the Court focused on the issue of consent being used to allow autodialers to be used to contact cell phone numbers.

The Judge found that since this case did not involve debt collectors, this case fell under the reasoning of a FCC 1992 rulemaking action that stated “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” Therefore the plaintiff had given her consent for Hawaii Airlines and its affiliates to contact her through her cellphone number and that the single text message did fall within the scope of “prior express consent.”

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the TCPA and the FDCPA and how telephone debt collectors should act. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 or visit our website at http://www.krohnandmoss.com/.