Telephone consumer protection act consent is a straight jacket - make the telemarketer wear it

In 2017 the ninth circuit said “the scope of a consumer's consent depends on the transactional context in which it is given. The call or text message must be based on the circumstance in which the consumer gave his or her number.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1040 (9th Cir. 2017).

Telemarketers want to treat consent like it is the measles, just being in the same room with it can infect you. Let's look at two recent cases of how tight consent really is. The first case is Shakih v. Fairway, 2025 WL 692104 (N.D. Ill March , 2025).

Khuram Shaikh v Fairway Independant Mortgage Corporation.pdf

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Mr. Shaikh apparently went on Lending Tree and consented to up to five mortgage providers (out of thousands on the Lending Tree platform) contacting him. One mortgage officer Emory Culver, working for New American Funding, received Mr. Shaikh's information. But then Emory Culver changed jobs and went to work for Fairway Independent Mortgage Corporation.

Even better, Fairway Independent Mortgage Corporation was also on the Lending Tree platform, but Lending Tree bars providers on their platform from sharing consumer information they obtain from Lending Tree.

But Culver took Mr. Shaikh's phone number with him and started robocalling Mr. Shaikh for his new employer Fairway:

Hey, how is it going? This is Emory Culver here with Fairway Mortgage actually now. I previously was with New American Funding and recently decided to part ways. Nothing person[al] but a new venture. I actually partnered with my sister who has been in the mortgage industry for about 12 years now. Yeah. So be sure to touch base. I hope you’re doing well. Obviously we haven’t spoken in a little while. But, yeah, I’m not exactly sure where you’re at as far as your mortgage. If you’re looking to reevaluate things. Possibly paying mortgage insurance, want to drop that off, maybe a lower interest rate, maybe pull some cash out. Just in general maybe if you have questions about, you know, buying a new house or a move in or whatever it might be. You know, nothing—no agenda. But if you have questions, feel [free] to reach out I’m always here, I’m always available, and if you have any questions about the market or just in general about where you’re standing, feel free to give me a shout. My number is [REDACTED]. My Email is [REDACTED]. So either way. Hope you’re doing well. Hope everything is going good with the house and you still have it. And yeah. Hope you reach out and like I said save you some money. That would be awesome. All right. Thanks so much. Talk to you soon

Mr. Shaikh filed suit against Fairway under 47 U.S.C. § 227(b) for robocalling without written consent. Fairway eventually moved for summary judgment which was denied:

Fairway cannot prevail on its motion for summary judgment unless it shows that no reasonable jury could find that Shaikh did not provide his prior express consent to receive prerecorded calls from Fairway . . . Fairway does not claim that Shaikh directly provided it with his express consent to receive automated calls from Fairway. Rather, Fairway bases its “prior express consent” argument on the LendingTree Consent. In particular, Fairway reads the LendingTree Consent as reflecting that Shaikh “‘consent[ed], acknowledge[ed], and agree[d]’ that he was ‘providing express written consent’ for ‘Network partners [Fairway] . . . to call [him] (including through . . . prerecorded messaging) . . . ’” Effectively, Fairway’s position is that Shaikh consented to receive calls from any of LendingTree’s approximately 2,500 Network partners, even if the Network partner, like Fairway, did not receive Shaikh’s contact information from LendingTree. This, according to Fairway, is the only reasonable interpretation of the LendingTree Consent. The Court disagrees.

The court went on to say "There would have been no basis for Mr. Shaikh to expect that a Network partner, like Fairway, that did not receive Mr. Shaikh’s contact information from LendingTree, would contact him. This is so because a Network partner who was not matched with Shaikh by LendingTree would have had no way of knowing that Mr. Shaikh was interested in obtaining financing or that he had consented to any entity contacting him via an automated, prerecorded call." which is paraphrasing Congress's legislative intent in passing the TCPA. “Congress did not expect the TCPA to be a barrier to normal, expected, and desired business communications” Van Patten.

I'll point out one more detail from the opinion. Fairway argued that while the mortgage officer changed employers, Mr. Shaikh's functional relationship with Culver didn't change. But this didn't work:

the Ninth Circuit held that a plaintiff’s prior express consent given to an entity remained in effect notwithstanding the fact that the entity changed its brand identity because the entity’s “ownership and operation” did not change. Van Patten. Here, Culver’s prior employer (New American) is a totally different company from his current employer (Fairway). As the Seventh Circuit has made clear, “providing one’s phone number does not provide carte blanche consent to receive automated marketing messages of any kind.” Blow v. Bijora, Inc., 855 F.3d 793, 805 (7th Cir. 2017)

This change in "ownership and operation" factors into the second case, Morris v. Lincare, Inc. 2025 WL 605616 (M.D. Fl. Feb. 25, 2025).

Dkt 200 - Morris v Lincare.pdf

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Plaintiff Morris purchased medical supplies from American HomePatient, Inc. American HomePatient, Inc gets bought out by Lincare. Robocalls from Lincare ensue. Morris sues Lincare for 47 U.S.C. § 227(b) for robocalling without written consent.

Somewhere between the last motion to dismiss in the case and docket 200, the parties must have fought over consent because the opinion above already presumes the consent issue goes to the jury and the court's opinion on the last motion to dismiss punted on the issue generally:

Even if the form [consenting to calls from American HomePatient, Inc] is central to Plaintiff's claim and appropriate for consideration on the instant motion, in a light favorable to Plaintiff, the form does not support dismissal at this juncture. Although Plaintiff does not dispute the existence of the form, she disputes its import. She argues that, if anything, the form demonstrates she did not give consent to receive Lincare's robo sales calls. Plaintiff contends that the form fails to comply with the regulations because it does not reference an agreement to receive prerecorded calls; did not notify Plaintiff she was not required to sign the form; and does not identify Lincare, Inc. as the seller/caller. Plaintiff repeatedly alleges she did not provide consent to Lincare to contact her with prerecorded sales calls. The form does not reference Lincare and there are no allegations pertaining to the relationship of Lincare and American HomePatient. As the matter of consent is in dispute, the Court cannot make a ruling at this stage as to whether the signed form bars Plaintiff's TCPA claim. Thus, Defendant's motion is due to be denied on this argument. Morris v. Lincare, Inc., 8:22-cv-2048-CEH-AAS, 7-8 (M.D. Fla. May. 24, 2024)

Some folks might question if the Shaikh and Morris cases are fair to the defendants and I believe they are for two reasons. Telemarketing laws were written in response to an industry with a long record of unwanted call. They've been on notice for a long time of how consent work, and both Fairway and Lincare could have mailed / emailed the respective plaintiffs a new form after the change in companies asking for permission to call.

Telemarketers take every opportunity to call without permission anyway, and weakening the laws on consent only serve to lead to more unwanted calls. Telemarketers have shown that gray areas are bad for consumers.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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