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Privacy Law Blog

Take Two of These, and I will Text you in the Morning (Because It’s Permitted Under the TCPA)

Posted in Direct Marketing

In its Memorandum Opinion and Order dated November 9, 2012, the US District Court for the Northern District of Alabama in Pinkard v. Wal-Mart Stores, Inc. held that under the Telephone Consumer Protection Act (TCPA), when an individual discloses his or her cellular phone number to a business, that individual is deemed to have expressly consented to receive telephone calls and text messages from that business unless he or she has expressly limited the scope of such consent at the time of the disclosure.  

The plaintiff in Pinkard alleged that when filling her prescription at one of Wal-Mart’s pharmacies, a Wal-Mart employee stated that the plaintiff’s phone number was needed “in case there were any questions that came up.”  The plaintiff provided her mobile telephone number to the employee, after which point the plaintiff began receiving text messages from Wal-Mart (although it is noted that the content of the messages is not known).  The plaintiff brought an action against Wal-Mart for violating the TCPA, which “… makes it illegal … to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service …”  The Pinkard court adopted the principle that a text message is the equivalent of a telephone call for purposes of the TCPA (which we have blogged about here).

In granting the defendant’s motion to dismiss, the court held that the plaintiff expressly consented to receiving text messages by providing her telephone number to the defendant upon the defendant’s request.  The plaintiff argued that express consent must be in writing, but the court held that express consent may take any form under the TCPA until October 16, 2013, when an FCC rule will be implemented that requires express consent be in writing.  The court also went on to state that by providing her phone number to Wal-Mart, the plaintiff consented to both phone calls and text messages, and if she wanted to narrow the scope of her consent, it was her responsibility to explicitly do so by stating the limited scope at the time of disclosure.

The court rejected the plaintiff’s motion to file an amended complaint because doing so would be “futile” given the court’s determination that the plaintiff expressly consented to the defendant’s sending of text messages.  The plaintiff does have the right to appeal the court’s decision, so it remains to be seen whether the court’s holding will withstand appellate scrutiny.  It also remains to be seen whether other courts will be influenced by this decision as it was decided at the district court level.