NOT LEGAL ADVICE, NOT LEGAL ADVICE, NOT LEGAL ADVICE–DON’T RELY ON THIS–CONSULT AN ATTORNEY
Every once in a while we get some questions from our loyal readers. Thought I’d take a minute and provide a few answers where I can. Like the disclaimer says, however, this isn’t intended to be legal advice, just some thoughts on TCPA subjects for consideration.
Question 1: One reader asks: If DNC/Fax opt outs afford up to 30 days to honor (due to technical/operational considerations) why is a revocation/wrong number report subject to immediate liability and no consideration for the very same operational problems associated with DNC/Fax opt out compliance?
Answer (Not legal advice–just my unresearched off-the-cuff thoughts–for entertainment purposes only): Yeah, its a problem. Best to separate recycled numbers from revocations. Two different things.
To my knowledge no court has directly held that an institution has some reasonable period of time to respond to a revocation notification. To the contrary, at least one court has found that consent is revoked immediately upon the filing of a lawsuit challenging calls as unlawful. See McMillion v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2018 U.S. Dist. LEXIS 17784 (N.D. Cal. Feb. 2, 2018). So there you go.
The idea of immediately-effective revocation does not square with the common law, however. As we all know, the TCPA does not authorize revocation expressly but courts have found that revocation is permitted consistent with the common law. Well here is what the common law says about revocation per the Restatement:
So you very clearly see reference to the idea that contractual consent cannot be revoked–that’s black letter law–but notice the “privilege to continue to act.” What’s that all about?
Well, according to the comments to the Restatement it means the following:
Even though the consent is terminated, secondary privileges may arise that permit the actor to continue to act for a reasonable time and in a reasonable manner in order to discontinue his conduct without unreasonable harm to his own interests. Thus one permitted to enter on land who is suddenly ordered to leave it may still be privileged to be on the land for the time necessary to withdraw from it (see § 176), and to remove his things from the land. (See § 177). Although the cases do not appear to have arisen, it would appear that similar secondary privileges may arise for the discontinuance of other types of activities
So the Restatement seems to recognize that where withdrawal of consent cannot be immediately honored some reasonable period of time is permitted before liability attaches. I first flagged this issue at the MBA’s Legal Issues forum in Los Angeles way back in April, 2018. To my knowledge there are no cases on point in the TCPA revocation context, however.
The recycled number context is very different however. ACA Int’l did, of course, underscore that in the recycled number context a caller has the right to reasonably rely on the consent given by the previous subscriber. When that reasonable reliance period ends is currently one of the subjects of the FCC’s TCPA Public Notice proceeding. Until we get that ruling, however, at least one court has recognized that a “reasonable” timeframe is applicable here.
Thanks for the question!
Question 2: Another reader asks whether the TCPA applies to attorney marketing text messages in states where state bar rules might allow such messages without consent.
Answer (Not legal advice–just my unresearched off-the-cuff thoughts–for entertainment purposes only): If you’re using an ATDS to call a cell phone for marketing purposes without consent then the TCPA is definitely going to apply to you. There might be a whole host of other state law and state bar issues that also apply but where the TCPA is applicable the TCPA is applicable. Definitely do your research on that one– could be real trouble. Any time you want to send marketing messages by phone you’re going to have to consider TCPA and TSR/DNC components.
Thanks for the Q.
Question 3: Another reader asks whether the Healthcare Exemption is an exemption from prior express consent or prior written consent.
Answer (Not legal advice–just my unresearched off-the-cuff thoughts–for entertainment purposes only): The Omnibus frames the issue at paragraph 143 as a request “to exempt from the TCPA’s prior express consent requirement certain non-telemarketing, healthcare calls that are not charged to the called party.” The Commission goes on to grant the exemption. So if the myriad requirements of the exemption are met–and my goodness are there a lot of them–no consent would be needed at all. In fact, if written express consent were an issue it seems like the exemption could never apply because the content of the message would have to be telemarketing at that point (because otherwise written express consent would not be required.) But, of course, healthcare messages including telemarketing content cannot meet the requirements of the exemption, which apply only to non-telemarketing messages. And we loop in circles forever..
Thanks for the questions folks. I’m sure I’ll find some time to answer more of your questions down the line. Fun.
And if you decide you do want some actual legal advice or guidance on anything TCPA related– I know a guy.