The Telephone Consumer Protection Act (TCPA) requires “prior express consent” for non-marketing calls and texts made using an automatic telephone dialing system (ATDS) or prerecorded message. The TCPA further specifies that for transactional text messages and calls using an ATDS or prerecorded message, “persons 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.” Businesses managing their consumer engagement initiatives have had to grapple with the limits of the scope of this consent.
The U.S. District Court for the Northern District of California recently addressed this issue in Walintukan v. SBE Entertainment Group, LLC, ruling that effective consent is one that relates to “the same subject matter” or “transactional context” that is covered by the challenged calls or text messages. In Walintukan, the plaintiff purchased online tickets to a specific nightclub event and, as part of the purchase, provided his cellular phone number. The nightclub subsequently sent two text messages promoting different events to the plaintiff. The Court held that the club exceeded the scope of consent by sending solicitous text messages promoting future events unrelated to the subject of the initial transaction.
Walintukan serves as a reminder to businesses relying on prior express consent that receiving such consent from consumers does not open the door for just any future communication, even if the business believes the content may be of interest to those individuals. Subsequent communications must relate to the same subject matter and transactional context in which consent was given.
* Breeana Minton contributed to this post.