Consent Requirement Hinges on Message Content

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This decision highlights the importance of the specific content of the communication at issue in a TCPA case, which impacts the type of consent that is required. According to the FCC in a 2012 ruling, if a call utilizing auto-dialer or prerecorded technology “includes or introduces any advertisement or constitutes telemarketing,” then prior express written consent from the telephone subscriber is required. In re Rules & Regs. Implementing the TCPA

The FCC regulations define prior express written consent as advertising data user list a written agreement that includes “clear and conspicuous disclosure informing the person signing that by executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice.” 2012 Order, 27 FCC Rcd. at 1855. In July 2015, the FCC reiterated that compliance hinges on whether the consent meets the definitional requirements of “prior express written consent” as set forth in the FCC’s 2012 Order. In re Rules & Regs. Implementing the TCPA of 1991, 30 FCC Rcd. 7961, 8012-14 (2015).

Here, Phan provided express consent for the text messages when he voluntarily provided his phone number and agreed to Agoda’s Terms of Use and Privacy Policy. Written consent was not required because of the Court’s ruling that the text message did not contain advertising or telemarketing content.

Practical Implications

While TCPA cases continue to be filed at an increasingly high rate, companies should ensure that the messages they send or calls they place to customers are based upon consent and that they relate to the business transaction(s) for which the contact information was obtained. In short, consent continues to be viewed contextually, and compliance measures should reflect this mindset.

The lawsuit is An Phan v. Agoda Company PTE Ltd., et al., Case No. 5:16-cv-07243, in the U.S. District Court for the Northern District of California.