Advertising Law Blog

In Luskin v. Seminole Comedy, Inc., decided on June 19, 2013 in the Southern District of Florida, Judge Robert Scola denied a motion to dismiss a case concerning text messages, even though the plaintiff had provided his telephone number to the text sender. The case marked the second time in two months that Judge Scola issued a decision that is contrary to the FCC's official position concerning the Telephone Consumer Protection Act (TCPA).

Under the TCPA, auto-dialed calls to cell phones, including text messages, are only lawful when the caller has the prior express consent of the recipient. However, the FCC's position since 1992 has been that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." It was undisputed that the plaintiff provided his phone number when ordering comedy club tickets online.

However, Judge Scola decided the TCPA's requirement of prior express consent and the FCC's standard were inconsistent, so he disregarded the fact that the plaintiff had given his number to the defendant, and denied the defendant's motion to dismiss the case: "The TCPA is clear that an automatic-dialing-system call is only lawful when the caller has the prior express consent of the recipient; the FCC's contrary ruling is not entitled to deference."

While this case is far from over, as a result of this ruling, the defendant will have to proceed with costly discovery under the threat of a ruinous damages award of $1500 per each text message sent to a potential class member. In May, Judge Scola issued a similar ruling in Mais v. Gulf Coast Collection Bureau,, making him the first judge to disregard the FCC's interpretation of this TCPA provision. The Mais ruling is currently on appeal to the Eleventh Circuit Court of Appeals.