On Thursday, October 29, 2015, the Ninth Circuit affirmed summary judgment of a proposed class action accusing PayPal of violating the Telephone Consumer Protection Act by sending users unsolicited text messages, following a hearing in which a judge said the claims were among the “silliest” he’s encountered. Opinion is available here: Roberts v. Paypal.
Plaintiff David Roberts had argued that when he gave the online payment site his phone number, he wasn’t giving it consent to send him a welcoming text message, which he said fell outside a Federal Communications Commission provision that allows businesses to send texts that are “normal business communications.” In their memorandum released Thursday, the circuit justices disagreed.
“Roberts’ contention that the FCC’s 1992 interpretation limits the consent expressed by release of a phone number to ‘normal business communications’ or ‘normal, expected or desired communications,’ is without merit … ,” the Ninth Circuit memorandum states. “[I]t is unclear how the text message at issue could be anything other than a normal business communication.”
At that hearing, Ninth Circuit Judge Richard Clifton called the controversy over PayPal’s texted greeting “one of the silliest claims I’ve ever heard.”
After the FCC’s omnibus ruling drastically increasing the scope of the TCPA’s definition of autodialer, TCPA litigation has become a fight about consent. The Court’s ruling in Roberts v. Paypal represents a common sense approach to consent. It gives companies who contact their customers via telephone some repose that they do not need to split hairs on whether consent applies to some calls but not other types of calls. Let’s hope this approach establishes that consent is consent in the context of TCPA.