Antitrust Law Daily Wrap Up, PRIVACY—NDAla: Wal-Mart’s Text Messages to Pharmacy Customers Were Not Actionable Under TCPA, (Nov 13, 2012)

By E. Darius Sturmer, J.D.

Wal-Mart Stores, Inc., did not violate the Telephone Consumer Protection Act of 1991 (TCPA) by allegedly sending unsolicited text messages through auto dialers and computerized equipment to the cellular telephones of individuals who filled prescriptions at the chain’s pharmacies, the federal district court in Huntsville, Alabama, has ruled (Pinkard v. Wal-Mart Stores, Inc., November 9, 2012, Smith, C.L.).

The plaintiff, a consumer asserting putative class claims on behalf of similarly-situated consumers, had consented to the messages by providing her telephone number to a Wal-Mart pharmacy when dropping off a prescription, the court decided. Therefore, Wal-Mart’s motion to dismiss the case was granted.

According to the complaining consumer’s allegations, no Wal-Mart employees had explicitly sought permission to send her text messages, and the request for her cellular number at the prescription drop-off was purportedly just “in case there were any questions that came up.” However, the consumer alleged, she was later told by an employee that the company automatically enrolls individuals who fill prescriptions at Wal-Mart pharmacies into a program providing them with “Wal-Mart related” text messages on their cellular phones.

Under the TCPA, the court explained, autodialed and prerecorded message calls were permissible if the called party expressly consented to their use. However, it added, the law was silent on the issue of what form such express consent had to take—oral, written, or some other kind. Thus, the plaintiff’s argument that she did not effectively consent because consent must be in writing lacked merit.

Though the Federal Communications Commission (FCC) has recently decided to promulgate a new rule requiring prior express written consent for all telephone calls using an automatic telephone dialing system, the court acknowledged, the agency’s established waiting period preceding implementation of the new rule means that it will not take effect until October 2013.

The consumer’s giving of her cellular number to the Wal-Mart pharmacy in the alleged circumstances amounted to express consent to “call” her in the future, the court held. “Express consent exists when an individual voluntarily provides her telephone number to another.”

The complaining consumer’s attempt to distinguish her consent to receive a voice telephone call from her consent to receive a text message was unavailing, as were her claims that text messages and voice phone calls “have always been treated differently under the TCPA and FCC rules.” Such a distinction “does not comport with common sense and everyday experience,” the court observed. The FCC and the court had rejected the notion that the TCPA treats traditional, voice telephone calls differently from text messages. Since a “call” under the TCPA could be either a voice call or a text message, the TCPA provision mandating express consent, 47 U.S.C. Sec. 227(b)(1)(A), applied to either in exactly the same manner.

That conclusion was further supported by the fact that both cellular calls and text messages were effectuated by dialing the very same number, the court added. “To provide one’s telephone number was to willingly give the recipient access to both methods of communication,” the court reasoned. By admitting that she gave Wal-Mart her cellular telephone number to call her, in the context that a text message counted as a call under the TCPA, the plaintiff pled herself out of court in this instance, the court said.

Jeffrey L. Bowling (Bedford Rogers & Bowling PC) for Stephanie Pinkard. Harlan I. Prater, IV (Lightfoot Franklin & White LLC) for Wal-Mart Stores, Inc.

The case is No. 3:12-cv-02902-CLS.

Cases: ConsumerProtection Privacy AlabamaNews