In Olney v. Job.com, Inc., 2014 WL 1747674 (E.D.Cal. 2014), Judge O’Neill found trial issues of fact and denied summary judgment to a TCPA defendant who the Resume–Now’s resume posting service, a service that is offered only to subscribing members and to whom Plaintiff had provided his cellular telphone number.
Plaintiff misinterprets Satterfield. “The FCC appears to have intended in its 1992 order to provide a definition of ‘prior express consent’ in the TCPA,” which is contained in paragraph 31 of the FCC Order. Baird V. Sabre, Inc., No. CV 13–000 SVW, ––– F .Supp.2d ––––, 2014 WL 320205, at *5 (C.D.Cal. Jan. 28, 2014) (citing the FCC Order, ¶ 7 (“Definitions of the terms ‘prior express consent’ and established business relationship’ [in TCPA] are set forth in paras. 29–35, infra.). As the court in Baird also noted, the Ninth Circuit “had no occasion [in Satterfield ] to consider the validity of the FCC’s interpretation of express consent .’ “ Accordingly, the court in Baird found that the definition contained in paragraph 31 of the FCC order governed its analysis of the meaning of “express prior consent” within TCPA. Id. at *6 (citing § 2342 of the Hobbs Act). ¶ The Court finds that the court in Baird correctly observed that the Ninth Circuit did not discuss (and therefore could not invalidate) the FCC Order. Thus, the Court finds that the FCC Order is controlling for purposes of interpreting TCPA insofar as a court of appeals has not invalidated it. FN3 Because the Court has found no decision doing so, the FCC’s pro-nouncement of what constitutes “prior express consent” under the TCPA, as stated in paragraph 31 of the FCC Order, controls here: “[p]ersons 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.” ¶ Here, the undisputed facts establish that Plaintiff registered an account with LiveCareer through Re-sume–Now. On August 14, 2012, Plaintiff “used LiveCareer’s resume posting service, which is available “only to its subscribing members.” Doc. 113–1, ¶ 18. Plaintiff then “chose to post his resume to job search websites classified as ‘General Sites,’ “ Doc. 113–1, ¶ 19, one of which wasJob.com. Doc 113–1, ¶ 21. Plaintiff then “completed a multi-step resume posting process in which he provided additional information to be included in his profile,” Doc. 113–1, ¶ 23, which included his cell phone number. Doc 113–1, ¶ 24. Part of the resume posting process involved “a contact information page, which contained the following text: ‘Enter your mailing address and current phone so that recruiters and potential employers can contact you.’ “ Doc. 113–1, ¶ 24. Plaintiff entered his cell phone number. On August 17, 2012, Plaintiff registered an account withJob.com via Resume–Now’s website. Doc. 113–1, 32. As part of that registration process, Plaintiff “provided his personal information, including … his telephone number.” Doc. 113–1, $ 33. Defendant “was unaware Plaintiff had used Resume–Now to register on its website.” Doc. 113–1, $ 32. ¶ Defendant asserts that, because the opt-out box was checked when Plaintiff registered his account, “Defendant forwarded Plaintiff’s profile information to Windy City, a third party call center, who attempted to fulfill Plaintiff’s request for additional information regarding educational opportunities.” Plaintiff asserts that he “did not leave the box checked or check the box and did not personally submit his personal in-formation on theJob.com website because [he] … never visited the website forJob.com.” Doc. 113–1, ¶ 36. Coupled with the fact that Defendant acknowl-edges that it appeared as if Plaintiff had created his account through Defendant’s site even though he created it on Resume–Now, a reasonable factfi nder might find that Plaintiff never checked (or failed to uncheck) the opt-out box. Accordingly, the Court finds that genuine issues of material fact exist as to whether Plaintiff consented to receive calls concerning educational opportunities when he created an account with Defendant through Resume–Now.
The District Court found a triable issue of fact as to whether the scope of any consent given extended to the calls received by the Plaintiff from an affiliate of the entity to which Plaintiff had given his telephone number.
It is undisputed that Plaintiff provided his cell phone number to Defendant to be contacted about potential employment opportunities. Defendant argues that, even if Plaintiff did not consent via the opt-out box, he gave Defendant his express prior consent to be called regarding educational opportunities when he provided his cell phone number to Defendant via Resume–Now’s resume posting service. ¶ Plaintiff argues that the FCC’s Order specifically stated that the provision of a telephone number only provides permission to be called in ‘normal business communications,’ Doc. 113 at 18 (citing the FCC Order, 31 fn. 57) (emphasis in original) and that a genuine issue of material fact exists “as to whether the calls at issue from Windy City soliciting educational opportunities constitute normal business communications.” Id. (emphasis in original). Plaintiff asserts that he provided Defendant prior express consent only to discuss employment opportunities. In Plaintiff’s view, because “[e]ducational opportunities are very differ-ent from employment opportunities … calls for [educational opportunities] … would be outside the scope of any prior express consent.” Doc. 113 at 18. Defendant contends these arguments fail because “TCPA does not require the call to be for the exact purpose for which the number was provided” and “educational opportunities are undeniably relevant and related to the employment process.” Doc. 115 at 5 (emphasis in original). ¶ Defendant is correct that TCPA does not require that a call be made “for the exact purpose for which the number was provided,” but it undoubtedly requires that the call bear some relation to the product or service for which the number was provided. Defendant acknowledges that educational opportunities are not the same as employment opportunities, but argues that they are “undeniably relevant and related to the employment process.” Doc. 115 at 5. Defendant thus maintains that the calls from Windy City soliciting educational opportunities fell within the scope of Plaintiff’s prior express consent. It may be true that the potential educational opportunities that Windy City was offering could have helped Plaintiff’s employment prospects; however, it is equally possible that the opportunities were wholly irrelevant to Plaintiff’s employment goals. The Court therefore finds that genuine issues of material fact exist as to whether the scope of Plaintiff’s express consent extended to Windy City’s calls regarding educational opportunities.
Finally, the District Court found no “good faith” exception to the TCPA.
Even if Defendant reasonably and in good faith believed it had Plaintiff’s consent to contact him regarding educational opportunities, Defendant may still be liable under TCPA. Defendant cites Chyba v. First Financial Mgmt., Inc., 12–CV–1721–BEN (WVG), 2013 6880237 (S.D.Cal. Nov. 20, 2013) to support its argument that a party may not be liable for calling someone in violation of TCPA if it believed in good faith that it had the consent of the recipient. Doc. 110–1 at 29. Plaintiff asserts this argument fails because TCPA is a strict liability statute. Doc. 113 at 31 (citing Alea London, Ltd. v. American Home Servs., Inc., 638 F.3d 768, 766 (11th Cir.2011) (“The TCPA is essentially a strict liability statute which imposes liability for erroneous unsolicited faxes.”); Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d 876, 882 n. 3 (8th Ci r.2005) (“The [ TCPA] … makes no exception for senders who mistakenly believe that recipients’ permission or invitation existed. The … issues of knowledge and willfulness … are material to the question of treble damages.”) ¶ The parties have cited no authority from the Ninth Circuit that addresses whether TCPA is a strict liability statute, and the Court is unaware of any. The Eight Circuit is the only court of appeals that has explicitly addressed the issue, however, and it held that TCPA is a strict liability statute. See Alea London, 638 at 766. Other courts of appeals have suggested the same. See Universal Underwriters, 401 F.3d at 882 n. 3; cf. Soppet v. Enhanced Recovery, 679 F.3d 637 (7th Ci r.2012) (holding defendant liable under TCPA for unsolicited calls for calling numbers that, although previously assigned to defendant’s clients, had been reassigned to unrelated third parties). ¶ Chyba is the only decision of which the Court is aware to find that a party otherwise liable under TCPA for making a call to an individual without consent may not be if it had a good faith basis to believe the call’s recipient consented to the call. Even assuming such a good faith exception exists, Chyba is distinguishable to this case. In Chyba, the plaintiff brought suit against the defendant for calls to her cell phone that allegedly violated TCPA.2013 WL 6880237, at * 1. A car rental company hired the defendant, a credit collections company, to assist in collecting a debt the car rental company claimed was due from the plaintiff. Id. at * 10. The car rental company therefore provided the defendant with the plaintiff’ s cell phone number that she had provided when she rented a car. Id. The defendant made calls to the plaintiff in an attempt to collect the car rental company’s debt. Id. The plaintiff alleged that those calls violated TCPA in that she had not consented to receive calls from the defendant. Id. ¶ The court noted that “[w]hen a consumer provides a cellular telephone number to a creditor as part of the underlying transaction, the provision of the number constitutes express consent for the creditor to contact the consumer about the debt.” Id. at * 10 (citing In re Rules and Regs. Implementing the Tele-phone Consumer Protection Act of 1991, 23 F.C.C. Rcd. 559, 564–65 (2008)). Because the car rental company had the plaintiff’ s express consent to be called regarding her alleged debt, the court found that the defendant had a good faith basis to believe it had the plaintiff’s consent to be called concerning the debt. Id. at * 11. ¶ Here, the undisputed facts demonstrate that Plaintiff had consented to receive communications concerning employment opportunities. Had Defend-ant called Plaintiff about potential employment opportunities, its argument that it had a good faith basis to make unsolicited phone calls to Plaintiff may be stronger. In any event, the Court declines to find TCPA provides a good faith exception and, even if it did, a genuine issue of material fact would exist to whether Defendant reasonably and in good faith relied on the information proffered to it when Plaintiff cre-ated his account with Defendant through Re-sume–Now.