What a great title. Have you caught your eye?
Excellent. Welcome to the blog.
So, I’ve often thought that it takes a higher level of consent to call this handsome stranger’s cell phone number than to engage in other forms of friendship, at least under federal law.
While most adult-to-adult activity only requires old, regular consent – which can (in most states) be implied and never needs to be in writing (at least not yet) – the Protection Act Consumers By Telephone (TCPA) – which governs calls to cell phones – and its regulations often require EXPRESS consent and, in many contexts, EXPRESS WRITTEN consent to call someone you have just met on his cell phone.
So literally you might not be able to call your new friend 3 days later. Or is it 5 days now? I can’t keep up with all the inflation.
One of the contexts requiring the highest level of consent is telemarketing. And while YOU probably don’t plan on teleprospecting the lovely people you meet online these days, I know the whole “online dating” thing is like “normal” now, but I’m still struggling. with the concept because I’m a dinosaur – a lot of companies are happy to do that; when you provide your phone number through a web form and agree to the appropriate disclosures, companies are free to send you the promotional material you are looking for.
But – and this is where we come to the title – what if the people giving their consent on the web form are minors? Kids? Non-adults?
We all know the outcome in certain contexts where consent is required. The magical age of “18” holds tremendous power under the law. Things that are totally out of reach one day become completely tangible the next.
And that includes cell phone numbers. At least according to a new lawsuit filed in California yesterday.
In the lawsuit, Kristen Hall – the mother of a minor who received telemarketing calls from a company with the unfortunate name of Smosh Dot Com – alleges that underage children and adolescents simply do not have the legal capacity to consent receive calls on their cell phone.
In Hall’s case, his child was 13 when he consented to receive discount code texts from Smosh.
It’s young enough to give any form of legal consent.
Interestingly, the plaintiff’s attorney allegedly contacted Smosh – I’m already tired of the name – and received a response from Smosh’s attorney (whom he stops) that Smosh had consented to send the messages. But the data Smosh (ugh) allegedly provided confirmed that Smosh knew the consent provider was 15, even though he was apparently really 13. (You just can’t trust what people are saying on the internet.)
I am not aware of any case law directly arguing that TCPA consent may or may not be provided by a minor. But if this theory is gaining traction, it is a game-changer for many companies that rely on online consent forms to communicate with their customers. And Smosh will be in a lot of trouble – the claimant claims that much of Smosh’s business model is based on marketing to children on their cell phones. So yeah, it could get ugly.
But it’s not just Smosh who should be worried. Considering the phenomenon of parents providing cell phones to their children – and not monitoring at all what they do with those phones – the risk for companies to call underage cell phone users seems remarkably high if this theory wins. ground. This is especially true since you cannot effectively control age on the Internet, although knowingly calling underage cell phones using regulated technology should probably take a break right now.
I’ll keep an eye on this one.
Read the complaint here – TCPA Hall
Have a nice TCPAWorld Halloween weekend. See you in November.