What Constitutes "Express Consent" Under the Telephone Consumer Protection Act

03 December 2012 Consumer Class Defense Counsel Blog

The Seventh Circuit Court of Appeals may soon clarify what constitutes express consent under the Telephone Consumer Protection Act (TCPA). U.S. District Court Judge John J. Tharp, Jr. has certified an interlocutory appeal on the question of whether providing another with your cell phone amounts to consent to being “robocalled” on that number. In Melissa Thrasher-Lyon vs. CCS Commercial, LLC, United States District Court Northern District of Illinois, the plaintiff Thrasher-Lyon alleged she struck a car while riding her bike. Illinois Farmers Insurance insured the car’s driver. At the scene of the accident, Thrasher-Lyon gave her cell phone number to the driver and to the police officer who responded. Later she exchanged calls with Farmers using that same cell phone. During her conversations with Farmers she admitted that she had caused the accident, and that the cell phone number she had given at the accident scene was her only telephone number. Farmers then submitted its subrogation claim to Thrasher-Lyon, and thereafter retained CCS Commercial LLC to collect.

CCS’s collection efforts included calls using a automatic dialer. Thrasher-Lyon alleged in her lawsuit that CCS’s calls were not permitted under the TCPA. The district court noted that the TCPA permits the use of an automatic telephone dialing system when the called party has given express consent. However the Court found, “As a matter of law, Thrasher-Lyon’s provision of her telephone number to the [sic] Ferguson, the police, and Farmers was not prior express consent to receive CCS’s robocalls on her cellular phone.” In otherwords, providing a telephone number is not the same thing as giving permission to be called with an auto dialer. The Court granted the plaintiff’s motion for summary judgment, holding that, except in a debtor/creditor relationship, the TCPA requires that a person expressly consent to auto dialer calls.

According to the CCS, the Court’s ruling ignored a FCC 1992 order which stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” The district court has certified the case for immediate appeal. The Seventh Circuit has not yet ruled on whether it will grant leave to appeal.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services