Ever since changes were brought in a couple of years ago, the Telephone Consumer Protection Act (TCPA) has required express consent by consumers before companies can contact them. The revamped laws don’t just ban cold-calling, but instead impose a duty on companies to ensure they’re only contacting individuals who have expressly agreed to be contacted. The issue of express versus implied consent – that is, consent that the company is assuming but that was never unquestionably given by the customer – has never been more important, and the increased fines levied for every TCPA infraction have made businesses wary of crossing the line. In that sense, then, the law is working, but a recent lawsuit highlighted the tricky issue of express versus implied consent - and clarified some ways “express consent” is defined in the eyes of the law.
The lawsuit against DCI Biologicals, Inc. was filed by Joseph Murphy after he received two text messages from the blood donation service. The messages came two years after Murphy last donated blood, and stated that he would receive MMS messages from DCI Biologicals unless he cancelled the service. According to the complaint, the company supplied his details to a third-party messaging service.
In its defense, DCI Biologicals argued that Murphy had given them his phone number as part of a donor information form and, that by writing the number down, he had consented to being contacted. Last week, a three-judge panel agreed with that argument, ruling that the Federal Communications Commission’s own interpretation of the TCPA was clear that providing contact information could constitute express consent.
For Murphy, writing down a cell number only meant implied consent – and, arguing for the lawsuit, he pointed out that this was a common sense approach. In legal terms, however, specific meaning has always been important, and the judges weren’t swayed, stating:
“Under [the TCPA] and the FCC’s interpretation of prior express consent, Mr. Murphy’s provision of his cell phone number constituted his express consent to be contacted by DCI at that number.”
The court also rejected Murphy’s claim that the FCC definition applied to residential phones, not cell phones. In short, this ruling was clear: by giving his phone number to the company when asked to fill out his personal information, Murphy had given the company consent to contact him.
The idea that someone can accidentally give their “express consent” to something may sound odd, but in the context of the case, the judges’ ruling had more to do with whether the company was dealing properly with the information it held. For example, the paperwork Murphy filled out never actually asked for his phone number – rather, Murphy seems to have volunteered this information along with his name and other pertinent details. So, DCI Biological was considered to have reasonable permission to use the information Murphy had given them.
The court’s decision is not a complete surprise. In a similar case, the ruling of which came a day after the end of DCI Biologicals’ case, a debt collection company was found not to have breached the TCPA by calling a person’s cell phone. The reason? The man had given his cell phone number when filling out paperwork – and that was considered enough to qualify as express consent.
If these two cases teach us anything, it’s that despite a stronger and more consumer-friendly TCPA, much of the burden to control companies’ use of our information still lies with, well, us. In both cases, information that was freely given had been used to contact customers who didn’t wish to be contacted. A lot of the time, we can’t avoid giving our phone numbers and other information out to companies – but, often, this information is not actually required. Just as stores may ask for your zip code even though it’s never required to complete the transaction, businesses may invite you to fill out forms with your personal information. The choice to give that information will always be yours.