Under the Telephone Consumer Protection Act (TCPA), businesses generally may not place an autodialed telemarketing call or a telemarketing call that delivers a pre-recorded message unless the recipient has provided his or her prior express consent to receive such a call. Recently, the Sixth and Ninth Circuits ruled on whether a business may place a telemarketing call or send a telemarketing text message to a prior customer. Specifically, the courts weighed in on whether a business may continue to send such telemarketing communications under the TCPA when the agreement governing the parties’ relationship, through which prior express consent was obtained, is terminated or has expired. These decisions further muddy the water in a legal area that is already murky at best.

On January 11, 2017, in Stevens-Bratton v. TruGreen Inc., No. 16-5161 (6th Cir. Jan. 11, 2017), the U.S. Court of Appeals for the Sixth Circuit held that a contractual provision providing express consent to call the customer does not survive the contract’s expiration. Plaintiff, via her services contract with the defendant, consented to the defendant’s placement of calls to her cell phone using an automatic dialing system for “possible future services.” After the service contract expired, the plaintiff registered her number on the National Do-Not-Call Registry (NDNC). Nevertheless, despite a request by the plaintiff to stop receiving such calls, the defendant continued to call the plaintiff on at least ten occasions. The plaintiff argued that the post-contract calls violated the TCPA, while the defendant argued that the consent to call the plaintiff survived the contract’s expiration. The court noted that an ambiguous contract should be construed against the drafter, and that contracts must also be construed consistent with common sense and in a manner that avoids absurd results. In this case, the court held that it would be absurd to allow the defendant to continue calling the plaintiff. Moreover, the court reasoned that the contract was drafted by the defendant and as such, should be interpreted favorably for the plaintiff. In the end, the court ruled that, when a contract provides for specific authorization to call a customer, once the contract is terminated, that right ends.

On January 30, 2017, the U.S. Court of Appeals for the Ninth Circuit reached a different conclusion in a similar case. In Van Patten v. Vertical Fitness Group, LLC, No. 14-55980, 2017 U.S. App. LEXIS 1591 (9th Cir. Jan. 30, 2017), the Ninth Circuit concluded that the plaintiff had not effectively revoked his consent to receive telemarketing text messages after terminating his contract with the defendant. There, the plaintiff had provided his cell phone number to the defendant when he became a member of a gym in Wisconsin. Shortly after joining, the plaintiff cancelled the membership and moved to California, but kept his cell phone number. After some time, the defendant changed its brand and began a marketing campaign promoting the change. During that campaign, the plaintiff received two text messages from the defendant promoting the gym. The plaintiff filed a class action asserting that the text messages violated the TCPA. The court, in reaching its holding that the defendant did not violate the TCPA, reasoned that, when the plaintiff gave his cell phone number for the purpose of his gym membership agreement, the scope of his consent included future text message invitations to “come back” and reactivate his gym membership. The court further reasoned that “the text messages at issue here were part of a campaign to get former and inactive gym members to return, and thus related to the reason [plaintiff] gave his number in the first place.” The court also concluded that the plaintiff did not effectively revoke his consent to receive such messages by simply cancelling the gym membership.

The inconsistency between these holdings is yet another example of the complexity of TCPA matters across the United States. On the one hand, the Sixth Circuit opinion should put businesses on notice of potential TCPA class action suits for post-contract termination/expiration calls. On the other hand, the Ninth Circuit opinion should be welcomed by defense counsels in TCPA actions as it allows for continued, post-contract communications.

We continue to monitor developments in TCPA litigation. Please see this list of recent TCPA actions.