United States: Calling Or Texting A Customer Or Patient? Federal Courts Address Prior Express Consent Under The TCPA

Federal courts are again addressing what constitutes a person's "prior express consent" to receive calls on a cell phone made by an automatic telephone dialing system ("ATDS") under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii). Two recent cases appear to be favorable for businesses and the companies to whom they outsource communications activities.

Scenario #1: Consent given during online purchases permit contractors to text the customer

The U.S. Court of Appeals for the Ninth Circuit ruled that "prior express consent" may be obtained when a customer purchases an airline ticket. In Baird v. Sabre, Inc., No. 14-55293, 2016 WL 424778, at *1 (9th Cir. Feb. 3, 2016), a customer booked a flight online and was prompted on the airline's website to provide contact information as "at least one phone number is required" when booking tickets. Weeks later, the airline's contractor contacted the customer via text asking if she wanted to receive flight notifications. The customer did not respond. The airline contractor sent no other messages. The customer filed a class action because she did not consent to the contractor sending the text to her.

The Ninth Circuit held that the customer expressly consented to the text message when she knowingly released her phone number to the airline while making a flight reservation "without "provid[ing] any instructions to the contrary indicating that she did not want to be reached at that number."

Scenario #2: Consent given to a hospital/intermediary permits a bill collector to call the patient

The U.S. Court of Appeals for the Sixth Circuit ruled that "prior express consent" may be obtained and conveyed via intermediaries. In Baisden v. Credit Adjustments, Inc., No. 15-3411, 2016 U.S. App. LEXIS 2465 (6th Cir. Feb. 12, 2016), patients signed an admission form that permitted the hospital to release their "health information" to third parties for purposes of "billing and payment" or "billing and collecting monies due." After the patients received calls from the debt collector, they filed a class action against the debt collector, the anesthesiology practice and the hospital.

The Sixth Circuit agreed with the Federal Communications Commission and the Eleventh Circuit that consent may be conveyed to another party—here, the hospital—as part of a commercial transaction when the debt is part of the reason why the person gave the number. The Sixth Circuit declined to find that a telephone number is not part of the "health information."

Key Takeaways

Over the years, there have been inconsistent rulings regarding what constitutes "prior express consent" to call or text a cell phone under the TCPA. The reality of life is that many people use their cell phones as their exclusive contact number. The reality of business is that communications activities are outsourced. These two rulings appear to be favorable for businesses and the companies to whom they outsource communications activities. Businesses should consider reviewing their communications practices, insurance policies and vendor contracts based on the law that governs their communications with customers.

If you have any questions about this Alert, please contact Sheila Raftery Wiggins, any of the attorneys in our Telecommunications Practice Group, any of the attorneys in our Information Technologies and Telecom Practice Group, any of the attorneys in our Trial Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.