In Lusskin v. Seminole Comedy, Inc., 2013 WL 3147339 (S.D.Fla. 2013), Judge Scola — who authored the Mais decision (http://www.calautofinance.com/?p=4199) — declined (again) to follow the FCC’s 1992 Order, stating that it deviated from the TCPA’s express language. Accordingly, Judge Mais held that merely providing one’s cellular telephone number does not equate to express consent to receive text messages.
The TCPA is clear that an automatic-dialing-system call is only lawful when the caller has the prior express consent of the recipient; the FCC’s contrary ruling is not entitled to deference. The 1992 FCC Order infers consent when a person knowingly releases his or her phone number. In re Rules & Reg’s Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C.R. 8752 (1992) (“1992 FCC Order”). It might be reasonable to infer that a person who gives his or her cell number to another party has consented to later be contacted, by that party, at that number through an automatic-dialing-system. But this is just an inference ( i.e., a conclusion reached by considering the circumstances and deducing a logical consequence from a person’s conduct). Because this conclusion must be inferred from conduct, that necessarily means that permission was not directly stated ( i.e., it was not expressed). See Black’s Law Dictionary 661 (9th ed.2009) (defining “expressed” as being “not left to inference”). Because the 1992 FCC Order creates an exception for consent-by-inference, also known as “implied consent,” the Order deviated from the plain language of the statute requiring “express consent.” Lusskin’s admission that he provided his cell number to Seminole Comedy as part of the online ticket purchase does not mean that, as a matter of law, he consented to receive promotional text messages by Seminole Comedy through an automatic-dialing system. Since Seminole Comedy’s prior-express-consent argument is predicated solely on the 1992 FCC Order, the argument necessarily fails because the 1992 FCC Order deviates from the plain language of the statute on the express-consent issue. This conclusion is further bolstered by Lusskin’s factual allegations that (1) Seminole Comedy never told him that it might use his cell number to send him promotional text messages through an automatic-dialing system (Compl.¶ 17), and (2) that he never gave his prior express consent to be contacted through an automatic-dialing system (Compl.¶ 18). The Motion to Dismiss Count I is denied.
Judge Scola also stated that the Plaintiff’s stated a claim for willful violation of the TCPA, noting a split of authority as to the standard that is required.
There appears to be a split of authority as to what constitutes a “willful” violation of the TCPA. See Stewart v. Regent Asset Mgmt. Solutions, No. 10–2552, 2011 WL 1766018, at *6 (N.D.Ga. May 4, 2011). Some courts hold that a defendant must know that it is violating the TCPA by placing a call using an automatic-telephone-dialing system. Id. This interpretation is a specific-intent approach. Other courts hold that a defendant need only be aware that it is placing a call using an automatic-telephone-dialing system, which happens to result in a violation of the TCPA—knowledge of the law being unnecessary. Id . This interpretation is a general-intent approach.While Lusskin has not alleged sufficient facts to support a “willfulness” claim under the specific-intent approach, he has made sufficient allegations to support a “willfulness” claim under the general-intent approach. Accordingly, Seminole Comedy’s motion to dismiss Count II, for failure to state a claim upon which relief may be granted, must be denied at this time.