Imagine going online to look for home loan information. You find a website and enter some basic information, then click “Get a free quote” – and the next day, your phone is besieged with calls and texts hawking mortgages.
A recent court decision shows that in this situation, it’s not enough for a company to have a website disclaimer about telemarketing; the disclaimer must be clear and conspicuous. If it’s hard to find or hard to read, consumers may be entitled to damages under the Telephone Consumer Protection Act (TCPA).
What Happened
On July 5, 2017, Samuel Barrera visited www.GuaranteedRate.com to request a mortgage quote. He filled out a form and entered his cell phone number. He then clicked on a “Get your free quote” button.
Starting the next day, Barrera said, he was “bombarded” with telemarketing calls from Guaranteed Rate. He said they were annoying, harassing and invasions of privacy. He filed a putative class action against Guaranteed Rate in federal court in August 2017, alleging the company violated the TCPA.
Guaranteed Rate subsequently filed a motion to dismiss Barrera’s lawsuit. The company said Barrera gave “express written consent” to receive the calls when he entered his phone number and clicked the button, because there was a disclaimer at the bottom of the page.
However, Barrera argued, the disclaimer was “inconspicuously hidden” – beneath the “Get your free quote” button and in “barely legible font.” (It was also referred to as “Lilliputian language.”) Because he could not see the disclaimer, Barrera said, the website was not an appropriate method for collecting his express consent.
The court agreed. In October 2017, Judge John Robert Blakey denied Guaranteed Rate’s motion to dismiss. The case will proceed.
How the Law Applied
The TCPA protects consumers by restricting telemarketing activity and the use of automated telephone equipment. For example, it prohibits calls to homes before 8 a.m. or after 9 p.m., and it doesn’t allow calls using recordings. Telemarketing companies can skirt the TCPA restrictions if consumers provide “prior express consent” – the core issue in this case.
Consent must be obtained through a “clear and conspicuous” disclosure – “a notice that would be apparent to the reasonable consumer.”
Guaranteed Rate had a disclaimer, but because of its size and position, the court said it was “unlikely that [Barrera] knew, when he clicked on the quote button that he was actually opening the door to a barrage of autodialed telemarketing calls to his cell phone.” Simply providing a phone number was not consent, the court said.
What It Means
This court decision shows that just having a disclaimer isn’t enough to give a company free rein over consumers’ phones. Indeed, the disclaimer must be legible and in a prominent location, “separate and distinguishable from advertising copy or other disclosures.”