Car Dealer Accused of Sidestepping TCPA Provisions in Appeals Court Filing

North Carolina car dealership John Hiester Chevrolet “sidesteps the clear regulatory text” of the Telephone Consumer Protection Act (TCPA) by asserting that a consumer clicking a “next step” button on a website is giving assent to receive prerecorded telemarketing calls, said plaintiff Tracie Beard, in her Monday reply brief (docket 22-2162) in the 4th U.S. Circuit Court of Appeals. The order on appeal marks the “first time ever” that a court has held a telemarketer can meet the requirements of a “clear and conspicuous” disclosure that is “separate and distinguishable” from other disclosures where it is contained within a hyperlinked separate webpage, said the brief. “The only evidence” the defendant presented was that Beard, by clicking the "next step" button on the car dealer's website, agreed to hyperlinked terms and conditions, plus privacy and policy notices, said the brief. It is not “clear and conspicuous,” as required under “clear, regulatory text,” which says any consent disclosure to receive prerecorded telemarketing phone calls needs to be “separate and distinguishable from “any other disclosures,” the reply said. The defense argued that plaintiff lacks standing because she didn’t read terms and conditions, so the formatting of those terms and conditions is not a TCPA Article III injury-in-fact. The formatting of the website is not what violated the TCPA, said the brief: “Placing the ringless voicemails is what violated the TCPA and confers Article III standing.” Placing consent within hyperlinked terms and conditions on a separate webpage and not disclosing that “agree” meant agreeing to telemarketing calls “cannot meet the ‘clear and conspicuous’” disclosure requirements, the reply said. Also, the purported consent language is not clearly and conspicuously disclosed within terms and conditions, which also failed to disclose that the car dealership would be placing prerecorded telemarketing voice calls that, absent consent, “would violate the law,” it said. Defendants suggest that the “realities of modern online practice” are to hide consent to receive prerecorded telemarketing calls within general terms and conditions policy located on a separate webpage from an onboarding process, said the reply. “If this were a typical practice, Plaintiff is quite confident -- and presumes the Court agrees -- there would be a wealth of case law addressing the permissibility of such practice,” and there is not, the reply said. Beard’s lawsuit against the car dealership was dismissed in November in U.S. District Court for Eastern North Carolina. U.S. District Court Judge James Dever ruled Beard provided prior express written consent concerning one of her phones. When she revoked consent on one phone number, she also revoked consent on another, and when she left a voicemail for the dealership asking not to be contacted on that number, the dealer didn’t leave any other voicemails on either line. He ruled the Chevrolet dealer “acted consistently” with her consent.