A recent federal court opinion demonstrates the need for companies to retain appropriate documentation to avoid liability under the Telephone Consumer Protection Act (TCPA) when they transmit messages to mobile phones using autodialers or prerecorded messages.
Last September, Alfredia Glenn sued CheckSmart Financial Company, a payday loan company. In her complaint, filed in the U.S. District Court for the Northern District of Alabama, Glenn alleged that CheckSmart used an autodialer and prerecorded messages to call Glenn’s wireless phone about a debt that she claimed was paid in full. Glenn alleged that she never gave CheckSmart permission to call her wireless phone via autodialer or prerecorded message, and that the CheckSmart’s conduct therefore violated the TCPA’s “prior express consent” requirement for such calls.
CheckSmart filed a motion to dismiss the TCPA claim, contending that Glenn consented by providing her contact information to CheckSmart as part of her loan transaction. The FCC has held that providing a mobile phone number in this manner can satisfy the prior express consent standard. In support of this claim, CheckSmart provided the court with an example of the loan application used at the time of Glenn’s loan.
On Tuesday, Judge Karon Owen Bowdre denied the motion to dismiss the TCPA claim, concluding that CheckSmart did not provide actual evidence of Glenn’s consent. “Were Defendant CheckSmart able to submit Plaintiff’s actual loan application showing that she provided these phone numbers, the court would need to evaluate the issue further,” Judge Bowdre wrote. “Defendant CheckSmart did not submit Plaintiff’s loan application, however; CheckSmart only submitted an example of the loan application used at the time.”
Judge Bowdre’s opinion is a reminder that companies should ensure that they collect and retain sufficient documentation of compliance with the TCPA. The statute provides individuals with a private right of action, with statutory damages of up to $1,500 per call. The FCC recently revised its TCPA rules, and we summarized them here.