9th Cir. Says to TCPA Plaintiff: “You consented!”

In Roberts v. PayPal, Inc., — Fed.Appx. —-, 2015 WL 6524840 (9th Cir. 2015), the Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment to PayPal in a TCPA matter based on a finding that the consumer had consented to receive text messages on his cellular telephone.

David Roberts appeals the district court’s grant of summary judgment in favor of PayPal, Inc., on Roberts’ claim under the Telephone Consumer Protection Act. After adding his cellular telephone number to his PayPal account, Roberts received a text message from PayPal that he contends violated the TCPA’s restriction on calls using an automatic telephone dialing system or an artificial or prerecorded voice absent “prior express consent.” See 47 U.S.C. § 227(b)(1)(A). The district court granted summary judgment in PayPal’s favor on the basis that Roberts had expressly consented to receive text messages from PayPal by knowingly providing PayPal his cell phone number. We affirm.¶ . . . Roberts’ contention that the FCC’s 1992 interpretation limits the consent expressed by release of a phone number to “normal business communications” or “normal, expected or desired communications,” is without merit. The FCC’s citation to a House Report mentioning “normal business communications” was not meant as a limitation on its interpretation of “prior express consent,” but merely as “support[ ]” for that interpretation. See In the Matter of Rules & Regulations, 7 F.C.C. Rcd. at 8769 n. 57. Moreover, the relevant statutory text does not contain any language regarding “normal business communications” or “normal, expected or desired communications.” Even if this court were to accept Roberts’ argument, it is unclear how the text message at issue could be anything other than a normal business communication. Although the FCC has changed its approach to “prior express consent” in recent years, see, e.g., In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F .C.C. Rcd. 1830, 1838 (Feb. 15, 2012), those changes occurred subsequent to the text message at issue in this case and do not apply retroactively.