The issue of prior consent, and when and if such consent was provided by a consumer before an autodialed call or text is placed, has been hotly contested in Telephone Consumer Protection Act (“TCPA”) cases throughout the country. A recent decision out of the Northern District of Illinois illustrates that companies calling their customers may have reason to hang onto proof of consent for a very long time.
In Kolinek v. Walgreen Co., the plaintiff had filled a prescription at a Walgreens pharmacy in 2002, when he provided his cellular phone number to a Walgreens pharmacist “who told him that his number was needed for potential identity verification purposes.” Then, in 2012, plaintiff began receiving automated calls at his cellular phone, reminding him to refill his prescription. Plaintiff brought suit under the TCPA for himself and a nationwide class, claiming that these calls were made to him without his prior express consent.
The district court (Judge Matthew F. Kennelly) noted that in 1992 the FCC explained the prior express consent defense as follows: “[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” The judge then held that under the Hobbs Act, he lacked authority to challenge this interpretation.
Because plaintiff had elected to provide his cellular telephone number as his point of contact ten years earlier, and never provided Walgreen Co. with “instructions to the contrary,” the trial court held that mere passage of time could not vitiate consent, opining that “consent under the TCPA does not expire on its own; it must be revoked.”
The trial court then granted Walgreens’ motion to dismiss and dismissed the plaintiff’s lawsuit with prejudice.
To read the Illinois district court’s opinion in Kolinek v. Walgreen Co., click here.
Why it matters: This case, finding that a telephone number provided ten years earlier still afforded a company consent to make autodialed informational calls (which require prior express consent), shows that companies should be collecting and maintaining proof that the telephone numbers they are calling are those provided by the customer. However, keep in mind that such consent (mere provision of a cell phone number) may not be sufficient under the revised TCPA rules that went into effect in October 2013. Given this court’s ruling, plaintiffs may be less likely to admit in their complaints that they provided a number at some point in the past, and so the company will need to be prepared to provide that evidence—perhaps from ten years ago.