Plaintiff sued defendant alleging defendant sent unsolicited text messages that violated the Telephone Consumer Protection Act (TCPA). Defendant moved for summary judgment. The court granted the motion. It found that plaintiff expressly gave consent by website registration to receive the text messages when she signed up for defendant’s services. This was a significant win for defendant because the TCPA provides for stiff penalties.
Consent by website registration
Plaintiff used her smartphone to sign up for defendant’s food delivery services. When she registered, she left checked a box opting in to receive text messages. She also provided her cell phone number.
Defense of express consent
Defendant raised the affirmative defense of express consent as an affirmative defense. Plaintiff claimed the signup process did not include a clear and conspicuous disclosure that she would receive text messages. The court rejected defendant’s arguments. It found that the website disclosure was clear and conspicuous.
Pre-checked box was okay
And the court rejected plaintiff’s argument that the pre-checked box opting in was no a valid electronic signature. The court recognized, among other things, that smartphones are a pervasive part of daily life, and a significant majority of American adults own smartphones. It also noted that it should consider the perspective of a reasonably prudent smartphone user. On these facts, the court found that the phone disclosure reasonably conveyed that registering an account with the phone communications box checked would indicate consent to phone communications regarding advertising.
Lundbom v. Schwans Home Service, Inc., 2020 WL 2736419 (D. Oregon, May 26, 2020)
About the author: Evan Brown is a technology and intellectual property attorney helping clients with a variety of online issues. Call him at (630) 362-7237 or send email to email@example.com. Follow on Twitter and Instagram.