Antitrust Law Daily Wrap Up, PRIVACY—D. Minn.: Newspaper not liable under TCPA for calls to subscriber’s cell phone, (Mar 27, 2014)

By Jody Coultas, J.D.

Star Tribune Media Company, LLC was entitled to dismissal of a newspaper subscriber’s Telephone Consumer Protection Act (TCPA) claim because the subscriber had consented to the calls at issue, according to the federal district court in St. Paul, Minnesota (Steinhoff v. Star Tribune Media Company, LLC, March 24, 2014, Nelson, S.).

The subscriber signed up and paid for a one-year newspaper subscription offered by Star Tribune, and provided her cellular telephone number on the order form. The subscription agreement stated that it would continue unless the subscriber notified Star Tribute that she wished to cancel. The subscriber claimed that the subscription terminated, despite not giving notice of cancellation, and that her consent to be contacted was also terminated. Star Tribune called the subscriber’s cell phone and left pre-recorded voice messages stating that the calls were for “service verification.”

On one occasion, a Star Tribune representative spoke to the subscriber and informed her of an outstanding balance. The subscriber said: “I’m in a hurry right now trying to get out the door. If you can give me a call back, like tomorrow or something, that would be wonderful.” About four months after that call, the subscriber filed claims alleging that Star Tribune knowingly and negligently violated the TCPA.

To establish a claim under the TCPA, a plaintiff must prove: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.

The subscriber could not maintain a TCPA claim against Star Tribune because she consented to the calls at issue, according to the court. Star Tribune argued that the subscriber gave her prior express consent to receive autodialed calls to her cellular number because she disclosed the number in order to obtain a subscription, while the subscriber contended that she only provided the number so she could order the subscription and obtain information about a special offer from Star Tribune. Persons who knowingly release their phone numbers provide consent to be contacted at that number, absent instructions to the contrary.

The subscriber argued that Star Tribune was required to obtain consent specifically to be called on her cellular number from an automatic telephone dialing system, and that she did not grant prior express consent to be called about a renewal subscription because the one-year subscription and any subsequent renewal were separate transactions. The court rejected both arguments. The prior express consent in connection with the original subscription applied to calls about its renewal.

There was no evidence that the subscriber revoked her consent, according to the court. The subscriber took no affirmative act to revoke any prior express consent, and the automatic termination of the subscription did not automatically revoke the prior consent to be called. The conversation between the parties also indicated that the subscriber did not revoke any prior consent to be called.

The case is No. 13-cv-1750 (SRN/JSM).

Attorneys: Abbas Kazerounian (Kazerounian Law Group, APC) for Michelle Steinhoff. Aaron D. Van Oort (Faegre Baker Daniels LLP) for Star Tribune Media Company, LLC.

Companies: Star Tribune Media Company, LLC

Cases: ConsumerProtection Privacy MinnesotaNews