Ninth Circuit Court of Appeals Finds Prior Express Consent, Grants Summary Judgment to PayPal in TCPA Case

The Court of Appeals for the Ninth Circuit recently upheld a grant of summary judgment to PayPal in the matter of Roberts v. PayPal, Inc. No. 13-16304, (Oct. 29, 2015).

Roberts brought his putative class action under the Telephone Consumer Protection Act (TCPA). After adding his cellular telephone number to his PayPal account, Roberts received a text message from PayPal that he contends violated the TCPA’s restriction on calls using an automatic telephone dialing system or an artificial or prerecorded voice absent “prior express consent.”

The district court granted summary judgment in PayPal’s favor on the basis that Roberts had expressly consented to receive text messages from PayPal by knowingly providing PayPal his cell phone number. Roberts appealed that decision.

In an unpublished opinion the Court of Appeals determined that, under the FCC’s 1992 interpretation of “prior express consent,” Roberts expressly consented to text messages from PayPal when he provided PayPal his cell phone number.

Roberts’ contention was 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.” However, the court felt that argument was without merit.  The opinion stated:

“The FCC’s citation to a House Report mentioning “normal business communications” was not meant as a limitation on its interpretation of “prior express consent,” but merely as “support[]” for that interpretation. Moreover, the relevant statutory text does not contain any language regarding “normal business communications” or “normal, expected or desired communications.” Even if this court were to accept Roberts’ argument, it is unclear how the text message at issue could be anything other than a normal business communication.”

The court also noted the following:

“Although the FCC has changed its approach to “prior express consent” in recent years, see, e.g., In the Matter of Rules & Regulations Implementing the Tel.

Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1838 (Feb. 15, 2012), those changes occurred subsequent to the text message at issue in this case and do not apply retroactively.”

insideARM Perspective

Before anyone gets too excited by this case, it should be noted that is an “unpublished opinion.” In the legal world, an unpublished opinion is a decision of a court that is not available for future citation as precedent because the court deems the case to have insufficient precedential value.

Still, the opinion is positive since it confirms a fairly broad interpretation of “prior express consent.”