District Court (Ill.) Says Previous Dismissal of TCPA Case Was Wrong; FCC Order Means that Providing Cell Number is Not Consent for All Purposes, Just for the Limited Reasons the Number was Provided

In Kolinek v. Walgreen Co., 2014 WL 3056813 (N.D.Ill. 2014), Judge Kennelly granted Plaintiff’s Motion to Reconsider the Court’s previous dismissal of Plaintiff’s TCPA claim.  We previously reported on this case here:  http://www.calautofinance.com/?p=4653 .

Walgreens moved to dismiss. It argued that Kolinek’s complaint established that he had given “prior express consent” for the call within the meaning of the TCPA, and also that the call fell within the “emergency purposes” exception. The Court granted Walgreens’ motion to dismiss. The TCPA does not define “prior express consent.” The Court concluded, however, that under the Administrative Orders Review Act (more commonly called the Hobbs Act), the Federal Communications Commission’s (FCC) interpretation of the prior express consent defense is binding on federal district courts, including this one. Kolinek, 2014 WL 518174, at *2 (citing CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 449–50 (7th Cir.2010). The Court determined that in In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992) (“1992 Order”), the agency had interpreted the defense in a way that barred Kolinek’s claim. In light of its ruling, the Court did not address Walgreens’ argument regarding the emergency purposes defense. ¶ Kolinek then filed the present motion to reconsider, arguing that the Court had misunderstood the thrust of the FCC’s ruling in the 1992 Order and in other rulings interpreting the prior express consent defense. After briefing on the motion was completed, the FCC issued a ruling entitled In re Group Me/Skype Communications S.A.R.L. Petition for Expedited Declaratory Ruling, FCC Rcd. 14–33, 2014 WL 126074 (Mar. 27, 2014) (“GroupMe Order”). Kolinek submitted this ruling as supplemental authority, and Walgreens has responded to that submission.

The Court found that the Plaintiff’s providing his cellular telephone number to Walgreen’s pharmacist at the pharmacist’s requests did not constitute consent “for all purposes”, but only for the purpose for which it was requested.

The FCC disagreed with this. It stated: “Consumers who provide a wireless phone number for a limited purpose—for service calls only—do not necessarily expect to receive telemarketing calls that go beyond the limited purpose for which oral consent regarding service calls may have been granted.” Id. ¶ In retrospect, the Court should have taken from the 2012 Order an indication that the FCC considers the scope of a consumer’s consent to receive calls to be dependent on the context in which it is given—contrary to what the Court had seen in the 1992 Order as a general rule that consent for one purpose means consent for all purposes. Any doubt in this regard is removed by the GroupMe Order, issued after the Court’s February 2014 ruling. In that order, the FCC took the opportunity to “further clarify” the boundaries of prior express consent under the TCPA. GroupMe Order, 2013 WL 1266074, at *5 ¶ 12. The FCC said that a consumer gives “prior express consent” when she provides her wireless number to the private organizer of a text message group “agree[ing] to receive associated calls and texts.” This, the FCC said, gives the business entity providing the private group messaging service the consumer’s consent to receive certain administrative texts and calls related to the operation of the private messaging group as well as the private group members’ texts. Id. The FCC went on to state that the “prior express consent requirement is satisfied with respect to both GroupMe and the group members regarding that particular group, but only regarding that particular group.” Id. (emphasis added). By that last clause, the FCC made it clear that turning over one’s wireless number for the purpose of joining one particular private messaging group did not amount to consent for communications relating to something other than that particular group. ¶ When one reads the cited FCC orders together, it is clear that the Court erred in its February 2014 ruling in this case. The FCC has established no general rule that if a consumer gives his cellular phone number to a business, she has in effect given permission to be called at that number for any reason at all, absent instructions to the contrary. Rather, to the extent the FCC’s orders establish a rule, it is that the scope of a consumer’s consent depends on its context and the purpose for which it is given. Consent for one purpose does not equate to consent for all purposes. ¶ This, in the Court’s view, is a more natural reading of the TCPA’s exception for a call “made with the prior consent of the called party.” 47 U.S.C. § 227(b)(1)(A). The “rule” that the Court had erroneously found in the FCC 2008 Order amounted to a version of implied consent. But that is not what the statute requires; it says that prior express consent is needed. Walgreens’ argument to the contrary, and the out-of-district cases it has cited in support, are unpersuasive. ¶ Kolinek’s complaint alleges that he gave Walgreens his cellular phone number in response to a request from a pharmacist who said it “was needed for potential identity verification purposes.” Compl. ¶ 18. If that is what happened, it does not amount to consent to automated calls reminding him to refill his prescription. The Court does not, of course, adjudicate the accuracy of Kolinek’s claim at this point; that must await factual development. For now, the Court is required to take his allegation as true. See, e.g., Rooni v. Biser, 742 F.3d 737, 738 (7th Cir.2014). As a result, Walgreens is not entitled to dismissal under Rule 12(b)(6) based on its prior express consent defense.