Multiple district courts have recently examined whether, and in what circumstances, providing one’s phone number suffices to establish consent to be called under the TCPA. The issue is complicated, turning on whether prior express consent must be in writing, a determination which, in turn, requires examination of whether the call in question constitutes “telemarketing” or “advertising.”
For example, in Barrera v. Guaranteed Rate, Inc., No. 17-5668, 2017 U.S. Dist. LEXIS 175223 (N.D. Ill. Oct. 23, 2017), the Northern District of Illinois, in ruling on a defendant’s motion to dismiss a class action, held that “simply providing a phone number” was not sufficient to establish consent. Id. at *6. The plaintiff argued that although he entered his cell phone number and clicked on a button advertising the provision of free mortgage quotes on the defendant’s website, he did not consent to receiving calls from the defendant offering to sell him mortgage services. The court agreed, finding that calls made to the plaintiff’s cell phone “attempt[ing] to sell him mortgage services” constituted telemarketing calls, as they fit within the FCC’s definition of “telemarketing”: “‘the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.’” Id. at *6-7 (quoting 47 C.F.R. § 64.1200(f)(12)). As a result, “express written consent was required.” Id. at *7 (emphasis added). The court further found that the plaintiff did not provide such written consent here, holding that “simply providing a phone number is not enough” in this context. Id. at *6. It distinguished this case from one in which a phone number is given as part of a credit application, noting that “[p]laintiff did not complete a credit application or otherwise execute a written consent; he requested a mortgage quote, a preliminary overture short of submitting a credit application.” Id. Thus, because there was no prior express written consent, the court declined to dismiss the complaint.
On the other hand, in Williams v. National Healthcare Review, No. 15-0054, 2017 U.S. Dist. LEXIS 176709 (D. Nev. Oct. 25, 2017), the District of Nevada granted the defendants’ motion for summary judgment, finding that the plaintiff had provided prior express consent to be called by providing her phone number on a hospital registration form. The court closely examined whether the calls at issue, which offered the plaintiff the opportunity to apply for Medicaid or other health-related financial assistance, constituted advertising or telemarketing. In doing so, the court looked to the FCC’s definitions of these terms as well as its 2015 Order and discussion of the medical exigency exception. Ultimately, the court concluded that the “calls regarding Medicaid and/or charitable health coverage” did not “constitute ‘advertising the commercial availability’ of any good or service” because “Medicaid is not a ‘commercially available’ program under the plain meaning of that phrase, as it is used to define ‘advertising.’” Id. at *19 (citation omitted). The court found that it was “immaterial” that the caller “may be paid” as a result of successfully obtaining financial assistance for the called party—“the call cannot be an advertising call if it does not promote a commercially available property, good, or service.” Id. at *19-20. Furthermore, the court held that “the calls at issue here, seeking to encourage enrollment in a government program that provides free or heavily subsidized healthcare does not constitute encouragement of a ‘purchase,’ ‘rental,’ or ‘investment’ of a ‘good, or service,’” and so were not telemarketing calls either. Id. at *20. As a result, unlike in Barrera, “only prior express consent” was required. Id. at *24. The court found that such consent was provided here: “[i]n light of the limited transactional context of the initial giving of the number upon going to the hospital for treatment . . . [p]laintiff consented to calls regarding core treatment issues, as well as to payment for her treatment, and payment for follow-up or future treatment.” Id. It concluded that “the consent of providing the number and other contact information [was] sufficient to satisfy the TCPA as elaborated by the FCC.” Id. at *25. Thus, it granted the defendants’ motion for summary judgment.
In analyzing whether and under what circumstances providing a phone number is sufficient to establish consent, the holdings of Barrera and Williams can and should be seen as limited to their specific facts, a point that both courts were careful to make. Due to the multi-step analysis involved and because at least some courts have “‘found that the FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason,’” id. at *13 (quoting Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1046 (9th Cir. 2017)), it is likely that examinations of this issue will necessarily continue to be fact-specific.