In an unpublished, per curiam decision, the Eighth Circuit recently reversed the entry of summary judgment in favor of a defendant and directed the district court to address whether the plaintiff had revoked his consent to being called on his cell phone. Brenner v. Am. Ed. Servs., No. 14-1340, 2014 U.S. App. LEXIS 18416 (8th Cir. Sept. 26, 2014).
Category - "Prior Express Consent"
FCC Seeks Comment on Petition Concerning Prior Express Consent
On August 1, 2014, the FCC issued a Public Notice seeking comment on a petition filed by Santander Consumer USA, Inc. (“Santander”), which requests an expedited declaratory ruling from the FCC to clarify the meaning of “prior express consent” with respect to non-telemarketing calls and text messages to cellular telephones, which include informational messages (e.g., messages regarding school closings or messages containing flight status information) and debt collection messages under the TCPA. Comments in response to the Public Notice are due September 2, 2014, and reply comments are due September 15, 2014.
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Twitter Sued in TCPA Class Action for Messaging Recycled Wireless Numbers
Not long after filing a spirited amicus brief criticizing “opportunistic plaintiffs’ lawyers” for using the TCPA as an “extortionist club” against companies offering automatic text-enabled services, Twitter has been sued in a TCPA putative class action of its own. See Nunes v. Twitter Inc., No. 14-02843 (N.D. Cal. 2014).
The Nunes complaint alleges that Twitter is violating the TCPA by sending automated text messages to subscribers that have not opted to receive texts from Twitter. Ironically, Twitter typically requires that subscribers initiate text interactions, thereby providing the sort of express consent that resulted in a district court’s dismissal of a TCPA lawsuit against the L.A. Lakers. See Emanuel v. The Los Angeles Lakers Inc., No. 12-9936 (C.D. Cal. 2013). In fact, users sign up for Twitter’s text message-based services for the precise purpose of receiving texts.
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