TCPA: Consent by “Somebody” Insufficient To Avoid Liability

The “intended recipient” approach is no longer a viable argument when seeking to dismiss a TCPA claim at the initial pleading stage.  Blalack v., 2022 WL 7320045 (C.D. Cal. Oct. 11, 2022).

In Blalack, Defendant is a real estate listing service which markets rent-to-own properties to consumers.  Over a one year period, Defendant sent 108 telemarketing text messages to Plaintiff Jamie Blalack’s cell phone to solicit her to purchase a subscription to Defendant’s services.  Screenshots of text messages read:

    • “Thank You for Signing up for Property Alerts.”
    • “Good morning, Harry. Search for properties in 74063 now.” (Plaintiff’s name is not Harry, and 74063 is not Plaintiff’s zip code).
    • “Reply HELP for HELP – STOP to stop.”

Each text contains a link which led Plaintiff to Defendant’s site to sign up for the service.  Only some texts offer Plaintiff the opportunity to “opt out” of future messages.

Plaintiff asserts that she did not consent to receive the text messages or communications from Defendant and that she uses her cell phone primarily for residential purposes.  Plaintiff registered her cell phone on the Federal Do Not Call Registry (“DNC Registry”).  Plaintiff also sent Defendant a written cease and desist letter, but Defendant continued sending the texts for another month.

In this lawsuit, Plaintiff asserts claims under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(c) seeking $500 per text, treble damages of $1500 per text, and injunctive relief.

Defendant filed a motion to dismiss, and the District Court denied these two arguments:

  • Residential purposes:  Defendant asserted that Plaintiff did not allege in the Complaint that her cell phone was used for residential purposes.  Yet, the District Court discussed:
    • 2003 FCC Order:  In 2003, the Federal Communications Commission’s  (“FCC”) Report and Order permits wireless subscribers  to participate in the DNC Registry.  Commission’s Report and Order, CG Docket No. 02-278, FCC 03-153, “Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991;” 47 C.F.R. § 64.1200(e).
    • DNC Registry Presumption:  In this Circuit, several district courts held that the allegations that a cell phone number is registered on the DNC  Registry is sufficient to establish – at the pleading stage – the presumption that the number is a residential one.
  • Prior express consent:  Defendant asserted that Plaintiff consented to receiving Defendant’s text messages.  There is no liability if the person making the telephone solicitations has obtained the subscriber’s prior express invitation or permission which is evidenced by a signed written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.  There is no liability if the call or message is to a person with whom the caller has an established business relationship.  Defendant argued that Plaintiff did not elect to opt out of receiving the messages, even though some messages permitted Plaintiff to do so.  Yet, the District Court discussed:
    • FCC Regulation:  To demonstrate “prior express invitation or consent,” the FCC Regulations require evidence of a “signed, written agreement,” and the screenshots do not: (1) constitute such a signed agreement, 47 C.F.R. § 64.1200(c)(ii); or (2) demonstrate a “voluntary two-way communication” between Plaintiff and Defendant that constitutes and “established business relationship,” 47 C.F.R. § 64.1200(f)(5).
    • Jamie, not Harry: The text identifies the recipient by a different name – Harry.  This allegation supports that Plaintiff did not provide her prior permission for the communications.

The District Court denied Defendant’s motion to dismiss and noted that there are fact questions that cannot be resolved on a motion to dismiss and are to be addressed in discovery.

In sum, the “intended recipient” approach is no longer a viable argument when seeking to dismiss a TCPA claim at the initial pleading stage.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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