Telephone and Texting Compliance News: Litigation Update — Florida Federal Court Upholds Prior Express Invitation and Draws Distinction to Section 227(b)

In a significant new decision, a federal court in Florida dismissed a class action in Harrell v. Aquion, Inc., Home Depot U.S.A., Inc., and A&B Marketing, Inc., 2024 WL 4188389 (M.D. Fla. Sept. 13, 2024), holding that a plaintiff provided prior express invitation or permission, thereby exempting the defendants from liability for calls allegedly made to a number registered on the National Do Not Call (DNC) Registry.

The case originated when plaintiff Elizabeth Harrell apparently completed a survey for a chance to win a gift card at a home improvement store, providing her phone number orally to the representative in the process. Harrell allegedly later received a text message and multiple phone calls from one of the defendants who served as the distributor of another named co-defendant that provided water treatment systems. Harrell claimed her number was listed on the DNC Registry and filed a class action lawsuit alleging violations of the Telephone Consumer Protection Act (TCPA) and the Florida Telephone Solicitation Act (FTSA).

The central issue before the court was whether Harrel’s disclosure of her phone number during the survey amounted to "prior express invitation or permission" to be contacted, exempting defendants from TCPA liability under 47 C.F.R. § 64.1200(c)(2)(ii). The defendants argued that Harrell’s disclosure of her phone number during the survey process constituted such permission. The disclosure included the following language:

By submitting to terms you give permission for sponsor to contact you by telephone or text message regarding the water awareness campaign even if your name appears on the DNC registry . . . .

Harrell contended that this disclosure did not meet the "clear and conspicuous" standard required for prior express written consent under 47 U.S.C. § 227(b) and 47 C.F.R. § 64.1200(f)(9) because it was presented in small, unbolded yellow font on a blue background, making it "illegible."

The court evaluated the distinction between "prior express invitation or permission" and "prior express written consent." 47 U.S.C. § 227(b) prohibits telemarketing calls made using an automatic telephone dialing system (ATDS) or an artificial/prerecorded voice and requires "clear and conspicuous" disclosure when obtaining prior express written consent to receive such calls. 47 C.F.R. § 64.1200(f)(9) further clarifies that this consent must be in a written agreement that is signed by the consumer and must clearly authorize the telemarketing communication.

However, Harrell’s claims were based on 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c), which regulate calls made to numbers on the DNC Registry. The court concluded that they do not require the same level of "clear and conspicuous" written consent required for claims premised on advertisements and brought under Section 227(b).

The court emphasized that the appropriate standard is whether a consumer would understand that by providing their phone number, they are agreeing to receive communications. Citing Eleventh Circuit precedent, the court stated:

Essentially, the Court must determine if Plaintiff made a clear and unmistakable communication of consent to a proposition that a reasonable consumer would have understood to constitute a request for such permission.

Applying this standard, the court found that Harrell had given prior express permission by providing her phone number and agreeing to the terms presented.

The Harrell decision is a big win. Though this court was willing to parse through the nuances of the TCPA and its regulations, the decision highlights why TCPA compliance can be so tricky, and is a reminder that the devil is in the details when defending TCPA class actions.

Subscribe To Viewpoints