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TCPA: Finally, A Common-Sense Approach to Express Consent

December 3, 2012

John C. Lynch

Jason E. Manning

Virginia Bell Flynn

On November 9, 2012, in Pinkard v. Wal-Mart Stores, Inc., the Northern District of Alabama granted a motion to dismiss brought by Wal-Mart in a Telephone Consumer Protection Act (TCPA) text message case.

In Pinkard, the plaintiff visited a Wal-Mart in-store pharmacy, and at the request of Wal-Mart employees, provided her mobile phone number. She alleged that the employees did not expressly seek her permission to send text messages but, rather, said that the number was necessary “in case . . . any questions . . . came up.” Plaintiff started receiving text messages from Wal-Mart (the frequency and contents were not alleged). When she inquired with Wal-Mart staff as to why she received text messages, a Wal-Mart employee told the plaintiff that it was Wal-Mart’s policy to automatically enroll pharmacy customers into a program that sends Wal-Mart-related texts to those customers.

Wal-Mart argued that by providing her number, plaintiff consented. The key question was what consent under the TCPA should look like. The court noted that the FCC has a rule that requires written consent, but this rule will not go into effect until October 2013. Written consent, therefore, was not yet required. The court also stated that a party consents to receiving calls when the party “voluntarily provides her telephone number to another.” Plaintiff argued that this rule only applied to telephone calls in the colloquial sense and not text messages (that the FCC and courts also treat as “calls” under the TCPA). The court was not persuaded, and stated that text messages and voice calls are treated the same for other purposes of the TCPA, so there is no reason to distinguish when it comes to consent:

No statutory, regulatory, or case-law rationale to distinguish [between calls and text messages] presently exists. Consequently, under sec. 227(b)(1), a person “who knowingly releases her phone number has in effect given her invitation of permission” to be contacted at that number, including via text message.

Id. at *13.

Plaintiff attempted to point to the Ninth Circuit’s statement in Satterfield v. Simon & Schuster, Inc., that consent needs to be “clear[] and unmistakable,” but the court stated that giving someone (even an employee at Wal-Mart) a mobile number is clear and unmistakable consent. To hold otherwise, the court says would “contradict the overwhelming weight of social practice.”

Practical Implications

Pinkard is an important decision for those businesses or companies who face or will be facing individual or class TCPA cases. With 2013 quickly becoming known as the Year of the TCPA Class Actions, Pinkard is a reminder and strong precedent for a common-sense approach to how courts should define prior express consent under the TCPA. It should be remembered, however, that beginning in October 2013, the FCC’s 2012 Report goes into effect, which requires prior express written consent for all telemarketing calls. And with the recent Best Buy opinion out of the Ninth Circuit, courts are not shy to label calls as “dual purpose,” which would then place those calls under the prescription of the 2012 Report.

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Troutman Sanders’ Financial Services Litigation and Regulatory Compliance Team

Troutman Sanders’ Financial Services Litigation and Regulatory Compliance team is an accomplished and experienced leader in providing litigation and regulatory advice to a broad spectrum of financial services institutions. The team is comprised of a dedicated group of trial and regulatory lawyers who regularly focus on resolving the array of issues which confront financial institutions. Its lawyers have years of hands-on successful experience in all areas of the trial process, including motions, arbitration, mediation, trial and appeal, coupled with in-depth banking industry and regulatory knowledge.

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