EXPRESS WRITEN COSENT NOT REQUIRED: The Second Circuit Court of Appeals Just Applied Express Consent Standard for Informational Calls to Marketing Faxes
Along with the recent uptick of DNC and pre-recorded call cases post-Facebook there has been an interesting increase in junk fax class actions.
Yep. Junk faxes—in 2021.
Well, a new ruling out of the Second Circuit Court of Appeals may have just made it easier for folks to send marketing faxes with “soft” express consent and not the tougher-to-get written consent we’re used to seeing under the TCPA.
So here’s what happened.
In Gorss Motels v. Lands’ End, Docket No. 20-589-cv 2021 U.S. App. LEXIS 14145 (2nd Cir. May 13, 2021) the Court held the Plaintiff provided “express consent” to receive marketing faxes because he signed an agreement authorizing the receipt of advertisements and provided his fax number on the agreement. Importantly, however, the form did not specify that the advertisements would be sent via fax. And the consent provision was buried in a much bigger document.
Axiomatically, a consent to receive advertisements buried in an adhesion contract would never pass muster under the FCC’s robust regulations surrounding express written consent in the context of voice calls or texts—there’s a nine part test for that. But interestingly the Court elected not to apply the FCC’s express written consent rules in the fax context.
Instead, the Second Circuit relied on case law interpreting express consent in the informational context to find that supplying a phone number as part of an agreement authorizing contact was sufficient to qualify as consent—even where the agreement does not specifically mention the outreach channel.
One note of caution, however, the Gorss Motels case seems to create a bit of a hybrid approach. While relying on the rule in informational calling cases—i.e. where consent is presumed anytime a number is provided to a caller for a purpose “closely related” to the purpose of the call—the Second Circuit yet noted the “mere provision of a fax number in the course of a business relationship is not sufficient to establish permission to receive faxed advertisements.” So something more than provision of a number is required—and in Gorss Motels that “something more” was the signed contract authorizing advertisements more broadly.
While Gorss Motels is a big win for the defendant it adds yet another level of confusion to the express consent rules in TCPAWorld. To recap we now have at least three applicable “express consent” definitions: i) those application to marketing calls/texts; ii) those applicable to marketing faxes; and iii) those applicable to informational calls. And there’s probably some additional rule applicable to informational faxes, which has yet to be refined.
Also interesting, Gorss Motels refused to directly apply applicable FCC TCPA rulings—noting a dispute regarding their continued viability post-PDR Resources. The Court relied on the applicable rulings, however, as mere persuasive authority in order to surmount the issue.