FCC Hammers PayPal

PayPal has long had some verbiage in its Terms of Service that purport to give them express consent to robocall and text their customers. They recently announced that, effective July 1, they were going all-in on robocalls: you consent to auto-dialed calls and texts on "any telephone number that you have provided us or that we have otherwise obtained.”

This isn't unique to PayPal. Lots of companies have this, most notably Chase Bank — I just got a credit card solicitation from them and it was right there in the short form summary of terms.

We've long argued that this is worthless. Only the current subscriber and user of a cell phone number can give consent, so it just doesn't matter how that was obtained. But judges who hate the TCPA and consumer protection litigation generally will grab any excuse they can to dismiss or at least limit the exposure.

So it was great to see the FCC today send a warning letter to PayPal telling them to stop and threatening them with penalties of $16,000 per call if they don't. It's worth a read in full, but here's one of the best parts: 

"If PayPal fails to include this required notice and/or fails to allow its users to refuse such consent, we are concerned that consent is in fact a condition of purchase of PayPal's service and thus violates the Telephone Consumer Protection Act and could subject PayPal, its affiliates, and its service providers to penalties of up to $16,000 per call or text message."

In other words, you have the right to opt out of robocalls and it can't be a condition of doing business with a company. And the company has to make that clear in its Terms of Service, like a Miranda warning — "you have the right to refuse and we'll still let you be our customer."