One of the key issues in any Telephone Consumer Protection Act class action lawsuit is whether there exists “prior express written consent.”  In a noteworthy victory for marketers, consent related mechanisms made all the difference.

In Lundbom v. Schwan’s Home Service, Inc., the plaintiff filed a TCPA lawsuit, alleging that the defendant violated the TCPA by sending her numerous promotional text messages.  The defendant moved to dismiss and argued that the plaintiff provided prior express written consent to receive the messages at the time she created an account on the defendant’s website.

On the account registration page, the plaintiff was presented with the option of agreeing to receive communications.  This disclosure read: “Stay connected – Receive delivery notifications, important updates and program news sent straight to your phone.”

Immediately below this disclosure was a pre-checked “text message disclosure” box, which stated:  “You agree and consent via your electronic signature by clicking the check box to receive calls at the provided number which will deliver automated, live and/or prerecorded messages, text messages, and text alerts by or on behalf of Schwan’s Home Service. This agreement is not entered into as a term or requirement of purchase. You will receive recurring messages. Msg & Data Rates May Apply. Mobile Terms: Schwan’s Privacy Policy: Reply HELP for help. Reply STOP to cancel.”

The plaintiff argued that no prior express written consent existed because the first disclosure  provided no express notice that she would receive promotional marketing communications, the second disclosure did not amount to express consent because the box was pre-checked.

The court disagreed.  It evaluated the disclosures from the standpoint of a reasonable consumer and held that words such as “advertisement” or “telemarketing” need not be present to effectively notify a consumer that marketing messages would be forthcoming.  In this context, according to the court, a reasonable consumer would have understood that the disclosures were providing such notice, including reference to “important updates” and “program news.” from a company whose sole purpose is to sell products.

The court also held that the pre-checked box was not fatal for the defendant, in part, because it was located directly next to the disclosure and that the plaintiff needed to scroll past it to complete her registration.  The court also considered that the plaintiff assented to terms and conditions that were hyperlinked in the disclosure, and which contained clear and conspicuous language regarding the receipt of promotional text messages.

Takeaway:  While interesting, the outcome here should not be relied upon as precedent that pre-checked boxes are an effective means to obtain and enforce affirmative assent.  Nor should it be relied upon as standing for the idea that express reference to promotional marketing messages is not required.  Prior express written consent should be clear, conspicuous and prominent, contain all the necessary legal components and plainly set forth the intended use of consumers’ personal information. 

Richard B. Newman is an FTC attorney at Hinch Newman LLP.  Follow him on National Law Review @ FTC Defense Lawyer and on Twitter @ FTC Defense Lawyer.

Informational purposes only. Not legal advice. May be considered attorney advertising.