Court Struggles in Interpreting the TCPA
On July 7, the District Court for the Northern District of Illinois in Kolinek v. Walgreen Co. issued an order vacating its earlier order dismissing the case. The court found that it had previously misinterpreted the FCC’s definition of “prior express consent.” The court’s previous decision had effectively held that as a general rule, “when a consumer provides her cellular telephone number to a business for any reason, she has effectively consented to receive calls from the business at that number, irrespective of the purpose of the particular call.” The court concluded that this was in error and held that “…to the extent the FCC's orders establish a rule, it is that the scope of a consumer's consent depends on its context and the purpose for which it is given. Consent for one purpose does not equate to consent for all purposes.”
Two takeaways from this decision: (1) Courts are continuing to struggle in interpreting the TCPA and the various FCC rulings interpreting it; and (2) the context under which consent is given matters.