Judge Scola Strikes Again: Rejects Traditional Standard for Express Consent Under TCPA

03 July 2013 Consumer Class Defense Counsel Blog

A little over a month after deciding Mais v. Golf Coast Collections Bureau, Inc., Judge Robert Scola has again ruled that the FCC’s 20 year old order regarding express consent under the Telephone Consumer Protection Act has no statutory support. The TCPA prohibits calling a person cellular telephone using an autodialer or leaving an artificial or prerecorded message without that person’s express consent. For decades that express consent could be found in the consumer’s simple act of providing an entity or person with his telephone number. The FCC has repeatedly reached the conclusion that giving out ones number was all that was required for express consent.

In Lusskin v. Seminole Comedy, Inc., Judge Scola again concluded that a person who merely releases his or her telephone number to another party has not consented to be contacted by that party with automated technology. In the case Bret Lusskin bought a ticket to a comedy show from Seminole Comedy, Inc. As part of his on-line transaction he provided his cell phone number. Thereafter he began getting text messages alerting him of upcoming funny people. Lusskin was not amused and sued. Seminole Comedy moved to dismiss. The Court denied the motion and ruled, “The 1992 FCC order deviates from the plain language of the statute on the express-consent issue.”  Lusskin gets to move forward with his case. The judge has already certified the Mais case for interlocutory appeal to the 11th Circuit. We would not be surprised if the same thing happened here.

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