Responding to an invitation to text can satisfy TCPA’s Express Consent Requirement

In a Telephone Consumer Protection Act (TCPA) putative class action against Coca-Cola and its marketing agent, a Northern District of Alabama magistrate judge recommended dismissal on September 3, 2014, of most of the plaintiff’s claims on grounds that the plaintiff gave Coca-Cola prior express consent to send text messages to his mobile phone.

The plaintiff alleged that he and the putative class members responded to a Coca-Cola scoreboard message at a college football game asking fans to “vote” for their favorite team using their mobile phones.  The plaintiff alleged that, after voting, he received a series of unsolicited text messages on his mobile phone.  Based on this, the plaintiff alleged that Coca-Cola unlawfully used an automated telephone dialing system (“ATDS”) to text his mobile phone and that Coca-Cola unlawfully texted his mobile number in violation of the national do-not-call registry on which the number was allegedly listed.

Coca-Cola filed a motion to dismiss both the ATDS claim and the do-not-call registry claim. On the ATDS claim, Coca-Cola unsuccessfully argued that a text message is not a call under the TCPA (an argument that courts have almost universally rejected), and that Coca-Cola did not use an ATDS in dialing the plaintiff’s mobile number (a closer question under current law because the parameters of what qualifies as an ATDS are constantly evolving with technology).  Coca-Cola was successful, however, in arguing that it had a complete affirmative defense to the plaintiff’s claims because the plaintiff gave “prior express consent” by texting his “vote” to Coca-Cola.  In agreeing with Coca-Cola on the express consent argument, the Court adopted a fairly expansive—but well-supported by precedent—definition of consent as “knowingly releasing” a mobile number to a potential caller.  In so finding, the Court noted that the plaintiff could not “plausibly claim that he was simply voting for his favorite team with no expectation of receiving ‘telemarketing’ messages in return.”

On the do-not-call registry claim, Coca-Cola argued that the plaintiff failed to adequately allege that he was a “residential telephone subscriber”, which is a prerequisite to a do-not-call registry claim.  Based on the plaintiff’s allegation that his mobile phone was registered on the do-not-call registry and the fact that the do-not-call registry is open only to residential telephone subscribers, the court inferred that the plaintiff had sufficiently alleged that he was a residential telephone subscriber.  This reasoning is likely correct, as the Federal Communications Commission does permit mobile phones to be registered on the do-not-call registry.  Although do-not-call registry claims are far more typical for residential landlines, more plaintiffs may allege registry claims for mobile phones in the future as an alternative to their ATDS claims.

Overall, this case is a good representation of the likely trend by courts of identifying more and more ways to prove express consent (outside of a writing) which is crucial to defeating TCPA class claims.