Southern Wisdom on the TCPA: “[W]e [need not] be blind as judges to what we know as men.” — Providing Cellular Telephone Number Constitutes Consent to Be Called (or Texted) on It

In Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039 (N.D.Ala. 2012), Judge Smith dismissed a TCPA texting class action because Plaintiff had provided her cellular telephone number to Wal-Mart at the time of sale. Plaintiff’s putative class action complaint asserts a single cause of action under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”). Specifically, plaintiff claims that defendant “violated the TCPA by sending unsolicited and unauthorized text messages to plaintiff and class members’ cell phones and mobile devices.” ¶ . . . Plaintiff, Stephanie Pinkard, dropped off a prescription with the Russellville Wal–Mart pharmacy at some unspecified date and time prior to initiating this suit. Wal–Mart employees asked plaintiff for several pieces of personal information, including her cellular telephone number. Plaintiff provided that information. The employees noted that plaintiff’s telephone number was needed “in case there were any questions that came up.

Defendant argues that plaintiff expressly consented to receiving text messages by providing her telephone number to defendant upon defendant’s request. Prior express consent is an affirmative defense, meaning that the defendant bears the burden of proving it. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 565 ¶ 10 (Jan. 4, 2008); Breslow v. Wells Fargo Bank, N.A., 867 F.Supp.2d 1316, 1319 (S.D.Fla.2012); Scott v. Merchants Ass’n Collection Division, Inc., No. 12–23018–CIV, 2012 WL 4896175, at *2 (S.D.Fla. Oct. 15, 2012); Buslepp v. B & B Entertainment, LLC, No. 12–60089–CIV, 2012 WL 4761509, at *4 (S.D.Fla. Oct. 5, 2012). ¶  . . . “[T]he TCPA is silent on the issue of what form of express consent—oral, written, or some other kind—is required.” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd. 1830, 1838 ¶ 21 (Feb. 15, 2012); see 47 U.S.C. § 227(a) ( TCPA definitions).  As defendant points out,FN25 the FCC established a twelve-month waiting period for the implementation of its new rule; that period “commence[d] upon publication of [Office of Management and Budget] ap-proval of [the FCC’s] written consent rules in the Federal Registrar.” In re Rules and Regulations, 27 FCC Rcd. at 1857 ¶ 20. The FCC published the written consent rule on June 11, 2012, see 77 Fed.Reg. 34233, and the Office of Management and Budget approved the rule on October 16, 2012. See 77 Fed.Reg. 63340. Therefore, express written consent will not be required until October 16, 2013. ¶ . . .“[A] call made … with the prior express consent of the called party” does not violate the TCPA. 47 U.S.C. § 227(b)(1)(A) (alterations supplied). Moreover, express consent exists when an individual voluntarily provides her telephone number to another. See In re Rules and Regulations, 7 FCC Rcd. at 8769, ¶ 31. Plaintiff attempts to distinguish her consent to receive a voice telephone call from her consent to receive a text message. ¶ . . .In opposition to defendant’s motion, plaintiff re-lies heavily on Satterfield and its definition of express consent: “Express consent is consent that is clearly and unmistakably stated.” FN29 Satterfield, 569 F.3d at 955 (quoting Black’s Law Dictionary 323 (8th ed.2004)) (internal quotation marks and alteration omitted). By simply reciting that definition while providing scant analysis, plaintiff overlooks the fact that providing her cellular telephone number to de-fendant was “clear and unmistakable” consent to be contacted at that number. To hold otherwise would contradict the overwhelming weight of social practice: FN30 that is, distributing one’s telephone number is an invitation to be called, especially when the number is given at another’s request.  [FN30. “[W]e [need not] be blind as judges to what we know as men.”   Venn v. United States, 400 F.2d 207, 211 (5th Cir.1968) (Wisdom, J.) (alternation supplied).]  Moreover, although the TCPA does not define “express consent,” see 47 U.S.C. § 227(a), the FCC interprets that term to encompass a situation where an individual voluntarily divulges her telephone number. See In re Rules and Regulations, 7 FCC Rcd. at 8769, ¶ 31.