In a case against JCPenney pending in federal District Court in Pennsylvania, the court ruled that retailer telephone systems that have the ability to automatically dial and send text messages violate the Telephone Consumer Protection Act (the “Act”). The Act prohibits the use of telephone systems that use automated dialers to randomly dial telephone numbers, except for emergency purposes. U.S. District Judge Irma E. Gonzalez opining that the Act states an automatic telephone dialing system “need not actually store, produce or call randomly or sequentially generated telephone numbers. It need only have the capacity to do it.” This decision stands to expose retailers to potential liability if their telephone equipment has thecapacity to randomly or sequentially dial telephone numbers, regardless of whether such a feature is actually used. In this case, the customer actually gave her cell phone number to JCPenney and agreed to be contacted by JCPenney at that number. Still, the court allowed the case to survive JCPenney’s motion to dismiss based on the Act.
Other retailers like Papa Johns and WalMart has been similarly subjected to litigation surrounding their use of customer telephone numbers, however, in those cases the issue was whether the customer gave knowing consent to the use of his or her telephone number and whether that consent extended to text messages; not whether their telephone systems violated the Act.
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