Three recent TCPA cases involving similar facts highlight the subtle differences that may – and may not -subject a TCPA claim to binding arbitration and/or result in an outright dismissal.

• In Pinkard v. Wal-Mart Stores, Inc., the court granted a motion to dismiss where the defense of consent appeared on the face of the complaint. The plaintiff admitted to providing her cell phone number to a Wal-Mart pharmacy when filling her prescription, and she subsequently received “Wal-Mart related” text messages. The court rejected the plaintiff’s claims that she provided her number only for the purpose of receiving a call because the FCC concluded that a text is a “call” under the TCPA.  The court also explained: “distributing one’s telephone number is an invitation to be called, especially when the number is given at another’s request. . . . Once she voluntarily provided defendant with her telephone number (i.e., generally consented), it was her responsibility to explicitly state the limited scope of her consent.” No. 12-cv-02902, 2012 WL 5511039 (N.D. Ala. Nov. 9, 2012).
• In re Jiffy Lube International, Inc., Text Spam Litigation reached a different result. Several of the plaintiffs provided their phone numbers on invoices when they received an oil change.  The Jiffy Lube shop later sent Plaintiff marketing text messages.  In sharp contrast to Wal-Mart, the court denied a motion to dismiss and refused to refer the case to arbitration, despite the presence of an “incredibly broad” arbitration clause.  According to the Jiffy Lube court, providing a cell phone number on an invoice does not constitute prior express consent because consent is not “clearly and unmistakably stated.”  The court also refused to refer the TCPA claims to arbitration because the text messages allegedly received did not arise from the oil change transaction and constituted “a tort action arising from a completely separate incident.” 847 F.Supp.2d 1253 (S.D. Cal. Mar. 9, 2012).
• McNamara v. Royal Bank of Scotland Group, PLC concluded otherwise with respect to arbitration.  There, the plaintiff applied for and used a credit card and missed his first payment. The card agreement included an arbitration clause requiring any “dispute or controversy of any nature under or related to any Account you have with the Bank (including claims related to . . . any servicing and collection activity . . .)” to be resolved by binding arbitration.  The court viewed the 22 collection calls the plaintiff received on his cell phone to be within the scope of the arbitration clause and referred the case to arbitration. No. 11-cv-2137, 2012 WL 5392181 (S.D. Cal. Nov. 5, 2012).

Takeaways:  Companies engaging in text messaging campaigns or using auto-dialed calls should be aware that different courts throughout the US may treat similar conduct differently. The Pinkard and Jiffy Lube cases highlight divergent views in the federal district courts of what constitutes “consent,” often a critical issue in TCPA litigation.  With text messages having the potential of being national in scope, a company could find itself defending a TCPA suit in any US jurisdiction, some of which do not have as large a body of jurisprudence as others. Companies may wish to exercise caution when proceeding in this still relatively-unsettled area.  The Jiffy Lube and McNamara cases’ differing results as to arbitration also illustrate the need for arbitration agreements to make clear that claims related to calls or text messages are within the scope of the agreement.