Late last month, a federal judge in California ruled that a consumer had consented to receive text messages when he voluntarily gave his cellphone number to PayPal. The plaintiff had agreed to PayPal’s user agreement when he became a PayPal customer in 2002. At that time, the user agreement did not have any reference to phone calls placed by PayPal to its customers; however, it did state that the agreement was subject to change without prior notice. In 2008, PayPal changed the terms of its user agreement so that it could contact its customers’ cell phones using an autodialer or prerecorded message. Plaintiff, who claimed that he did not read this revised user agreement, added his cell phone number to his account and immediately received a text message from PayPal. He subsequently brought suit, arguing that PayPal sent him an unsolicited text message to his cell phone without prior express consent, in violation of the Telephone Consumer Protection Act (“TCPA”). The court, although “hesitant to find that plaintiff could have provided his consent through a revised user agreement of which he was never made aware,” nonetheless granted PayPal’s motion for summary judgment on the basis that plaintiff did consent to receive text messages simply by providing his phone number to the company.
This case adds to the growing number of cases that have grappled with the TCPA’s prior express consent requirement. In fact, just a few weeks prior to the PayPal case, a Florida federal district court rejected the argument that the mere act of providing a phone number constitutes consent in the debtor-creditor context. In light of this uncertain landscape, companies would be wise to obtain consent that is clear and unmistakable, rather than rely on “implied” consent through an individual’s conduct.
And, keep in mind that the game changes completely in October 2013, when new Federal Communications Commission rules will require that companies have “prior express written consent” before using an autodialer to call or text consumers for marketing purposes. Under this new standard, prior express written consent must be in writing, bear the signature (or electronic signature) of the person to be called or texted, list the phone number to which calls or texts may be made, and contain a clear and conspicuous disclosure informing the consumer that calls will be made using an autodialer and that the person is not required to provide consent to receive such calls or texts as a condition of making a purchase. With these new requirements, the mere provision of a phone number will clearly not suffice as consent.