• TCPA: Complete Turnaround on Definition of ‘Prior Express Consent’
  • January 7, 2013 | Authors: David N. Anthony; Virginia Bell Flynn; Alan D. Wingfield
  • Law Firm: Troutman Sanders LLP - Richmond Office
  • On December 28, 2012, the Ninth Circuit amended its prior opinion filed on October 12, 2012, in Meyer v. Portfolio Recovery Associates, LLC, No. 11-56600, to make a 180-degree turn in its definition of prior express consent under the Telephone Consumer Protection Act (TCPA). Specifically, the October opinion defined “prior express consent” as “consent ... granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue.” 696 F.3d 943, 948 (9th Cir. 2012) (emphasis added). This definition caused consternation as being overly narrow and completely unworkable, and went against common practices and the prevailing view of the law. The Ninth Circuit, apparently, agreed and corrected itself.

    The revised December 28 opinion specifically replaces the above language with the following definition: “Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed.” 2012 U.S. App. LEXIS 26707, *1 (9th Cir. Dec. 28, 2012) (emphasis added).

    What Does This Mean?

    The Ninth Circuit’s definition of “prior express consent” has, once again, changed the landscape of TCPA practice for businesses that use autodialers or pre-recorded messages when placing calls to cellular telephones. Under the revised opinion, businesses may now obtain consent any time prior to making the telephone call to the consumer. While this issue certainly raises practical concerns, there are several options to increase a company’s compliance with the TCPA, including to ensure that express consent has been provided by the consumer.