District Court (Ill.) Holds that Consent Obtained During an Autodialed Call Does Not Constitute Prior Express Consent Necessary to Deliver the Message in the First Place; Refuses to Stay Case under Primary Jurisdiction Doctrine

In Charvat v. Allstate Corporation, — F.Supp.2d —-, 2014 WL 866377 (N.D.Ill. 2014), Judge Bucklo held that consent obtained during an autodialed call, such as requesting that a consumer ‘press 1’ to receive further information, does not constitute the prior consent necessary to deliver the message in the first place.  Judge Bucklo also refused to stay the matter under the prior express consent doctrine.

Defendants’ second argument—that plaintiff either has waived, or is estopped from raising, the argument that he did not consent to the call because he proceeded to follow automated instructions and ultimately provided information to a human being—conflicts with the FCC’s 2003 Rules and Regulations, which indicate that a consumer’s subsequent participation in an automated call does not amount to the “prior express consent” the statute requires: “Purporting to obtain consent during the call, such as requesting that a consumer ‘press 1’ to receive further information, does not constitute the prior consent necessary to deliver the message in the first place, as the request to ‘press 1’ is part of the telemarketing call.” 18 FCC Rcd 14014 at ¶ 142 (July 3, 2003) (original emphasis). Nothing in the FCC’s subsequent rulings in SoundBite Communications, Inc., 27 FCC Rcd. 15391 (Nov. 26, 2012) (consumer’s prior express consent to receive text messages encompasses consent to receive one final message confirming consumer’s request to “opt-out” of further messages), or Dish Network, 28 FCC Rcd 6574 (April 17, 2013) (addressing a seller’s liability for automated calls made by third-party telemarketers), suggests that the FCC is inclined to change its 2003 ruling that a consumer’s participation in an automated call cannot be deemed “prior express consent.” Defendants’ reliance on Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3rd Cir.2013) is equally misplaced, as that decision—like the FCC’s ruling in SoundBite —focused on a consumer’s right to revoke prior express consent once granted. Nothing in it suggests that a consumer’s conduct during the course of a “robocall” can substitute for prior express consent. In fact, the Gager court explicitly noted that the TCPA is “a remedial statute that was passed to protect consumers from unwanted calls.” Id. at 272. To construe its holding in the manner defendants propose, in which consumers would forfeit the statute’s protections anytime they follow an automated caller’s instructions, is inimical to the Third Circuit’s statement of the statute’s purpose.FN2  [FN2. I also deny defendants’ alternative request to refer the issue of subsequent consent to the FCC under the doctrine of primary jurisdiction because I am not persuaded that any of defendants’ cited authorities suggests the FCC is inclined to reconsider its 2003 ruling that “prior express consent” cannot be obtained during the call.].