In a somewhat unusual case the FCC has cited Lyft Inc. for failing to allow consumers to use Lyft’s services without opting in to receive autodialed texts and calls. While Lyft’s terms of services state that customers have the ability to unsubscribe or opt out from receiving text messages, Lyft does not actually provide any unsubscribe options or any information or links that would allow consumers to easily opt out of receiving such calls and texts. Furthermore, if consumers are actually able to opt out of such calls and texts, they are not able to use Lyft’s services unless they opt back into receiving such calls and texts.  The Lyft citation appears to be one of the FCC’s first enforcement actions on this particular aspect of their prior express written consent requirements.
 
The FCC’s definition of prior express written consent prohibits companies from requiring customers to consent to receive autodialed or prerecorded telemarketing calls/texts as a condition of purchase. Additionally, business should beware that, as this case demonstrates, the FCC will look past what the terms of service or other disclosures say, to the consumer’s actual experience.
 
If Lyft continues to violate the TCPA they could face up to $16,000 in fines per violation, or for each day of continuing violation up to $112,500 for any single act or failure to act.