FCC Cites Lyft and First National Bank for Failure to Obtain “Prior Express Written Consent”

As background, the TCPA requires companies to obtain “prior express written consent” for all prerecorded or autodialed marketing calls or text messages made to their consumers’ wireless telephone numbers.  Among other requirements, to obtain “prior express written consent,” a company must: (1) obtain a signed written agreement from the consumer, and (2) provide “clear and conspicuous” disclosures that: (a) the signatory agrees to receive autodialed or prerecorded marketing communications; and (b) providing consent is not a condition of purchase of any goods or services.

Travis LeBlanc, Chief of the FCC Enforcement Bureau, stated, “[c]onsumers have the right to choose whether they want marketing calls and texts to their cell phones… we again make clear that such calls and texts are unlawful without express written consumer consent.  We urge that any company that unlawfully conditions its service on consent to unwanted marketing calls and texts to act swiftly to change its policies.”

Below, we provide additional details about the FCC’s enforcement actions, along with some suggested steps that organizations can take to help prevent TCPA violations in the future.

Lyft

The FCC stated that Lyft’s terms of service required consumers to expressly consent to receiving autodialed or prerecorded communications and allowed them to opt out of automated marketing text messages and calls (in the terms of service, “if you wish to opt-out of promotional emails, text messages, or other communications, you may opt-out by following the unsubscribe options”).  However, the FCC claimed that contrary to the statements in the terms, there was no simple way to completely opt out from receiving the marketing calls and texts.  Furthermore, once consumers opted out, they could no longer use Lyft’s services.  Thus, Lyft was effectively requiring customers to agree to receive autodialed or prerecorded marketing communications on their mobile phones as a condition for utilizing Lyft’s services.  Therefore, the FCC concluded that Lyft’s approach was contrary to the TCPA’s requirements.

FNB

FNB’s Online Banking Service Agreement required customers to agree to receive emails and text messages containing marketing information.  As one of the issues cited by the FCC, FNB’s Online Banking Services Agreement required customers to “consent to receiving text messages and emails from [FNB] at [a customer-provided] number for marketing purposes.”  The FCC stated that the FNB did not comply with the TCPA because the company failed to notify consumers that they have the right to refuse to give consent.  Furthermore, the FCC objected to the FNB requirement that consumers must agree to receive autodialed or prerecorded marketing communications (as a condition) to utilize FNB services.

What You Can Do

Based on the FCC’s citations, organizations should scrutinize their terms and conditions statements and opt-in approaches to ensure that they are obtaining defensible “prior express written consent” before making autodialed or prerecorded marketing calls and texts to wireless telephone numbers.  Obtaining “prior express written consent” cannot be a condition for purchasing any goods or services, and consumers must be able to easily opt out from receiving such communications.

This entry originally was published on Hogan Lovells’ “Focus on Regulation.” For information regarding other TCPA developments, please check back here and visit “Focus on Regulation” blog posts FCC Adopts New Rules to Limit “Robocalls” and The FCC’s New TCPA Decision: Key Issues and What Companies Should be Doing Now That It Has Been Appealed.

Authored by Mark Brennan.