TCPA Update: The Scope of Valid Consent to Call

Let’s say that you obtain valid consent to place an automated call to a consumer’s cell phone under the Telephone Consumer Protection Act to discuss insurance options.  Does that mean you can also call them to offer a diabetic product?   The FCC and several recent court decisions illustrate that a consumer’s consent is not unlimited.  If a consumer provides a cell phone number for a specific purpose in connection with a specific transaction, the FCC and some courts take the position that the scope of the consent is limited to communications directly related to that transaction.

In a recent case before the Second Circuit Court of Appeals, Nigro v. Mercantile Adjustment Bureau, LLC,  the plaintiff contacted the power company to request termination of electric service on behalf of his recently recently deceased mother‑in‑law, and he provided a cell phone number where he could be contacted. More than a year later, a collection agency made several calls to the plaintiff’s cell phone using an autodialer in an effort to collect on the mother-in-law’s delinquent account. The plaintiff claimed that he had not consented to the collection calls and filed suit. The district court granted summary judgment in favor of the defendant. In doing so, it relied on the FCC’s statement in its 1991 Rulemaking Order, which states that  “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.”   The district court reasoned that the plaintiff “consented to calls regarding the subject of the transaction, namely the termination of [the] account,” which included any effort to collect on any account delinquency.

The plaintiff appealed, and the FCC filed an amicus brief in support of his argument, taking the position that when a consumer provides a cell phone number for a limited purpose, the scope of consent is strictly limited to that purpose.  In its brief, the FCC stated that although the plaintiff consented to receive calls regarding the termination of service, the scope of that consent did not extend to debt collection calls regarding debts that did not arise ‘during the transaction’ in which the plaintiff provided his number.

Several other courts have adopted the FCC’s position and have held that consent is context-limited. For example, in the Illinois case of Kolinek v. Walgreen Co., the plaintiff provided his cell phone number to a pharmacy for identity verification purposes, and the court found that this did not constitute consent to receive automated calls regarding prescription refills.  

Some courts have found consent to extend beyond the specifics of a single transaction.  For example, in a Pennsylvania case, a consumer gave a creditor his cell phone number as a contact number for his account.  The court ruled that doing so meant that the consent extended to any calls relating to debts on that account.  Similarly, a Maryland court held that a plaintiff consented to receive automated calls from a debt collector when he provided a cell phone number to a hospital in connection with medical services. The court relied on the FCC ruling stating that providing a cell phone number to the service provider/doctor is the same as providing it to a third-party collector working on behalf of the service provider. Thus, by providing a cell phone number in conjunction with patient registration, the plaintiff consented to receive calls from a debt collector operating on the hospital’s behalf.

What it all Boils Down to

According to the FCC, consent is limited to the specific transaction.  According to some courts, the scope of consent may be broader, depending upon the facts at issue.  To avoid the issue of scope, those companies interested in calling consumers should draft the language granting them consent to do so as broadly as possible.  Here’s an example:

You expressly consent to be contacted by our company, or anyone calling on our behalf, for any and all purposes, at any telephone number you provide, including any wireless number.  Calls will be made using automated dialing technology and may feature a prerecorded voice.  

Naturally, wording your consent in the broadest possible terms will likely affect conversions, especially if you’re seeking to establish contact with a consumer to pitch a particular product or service.



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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