Every one in a while a case will come out that doesn’t move the ball an inch.

Here’s one.

In Loyhayem, No. 20-56014 (9th Cir. 2021)–available here–the Ninth Circuit Court of Appeals held that prerecorded job recruitment calls to cell phones require express consent under the TCPA.

But we already knew that.

ALL calls to cell phones require express consent if made using an ATDS or a pre-recorded/artificial voice message. Information calls? Yep. B2B calls? Yep. Job recruitment calls? Yep.

All calls. To cell phones. Using an ATDS or pre-recorded/artificial voice message. Require express consent.

Now, job recruitment calls are not marketing calls–as Erin just explained the other day— and so they do not require WRITTEN express consent. They just require regular old express consent.

In Loyhayem the court below had apparently held that informational calls–like job recruitment calls–could be made using technology regulated by the TCPA to cell phones without any consent. But that’s not right. And the Ninth Circuit just explained why:

Loyhayem did not allege that the call he received involved advertising or telemarketing, but that simply means the heightened written consent requirement imposed by paragraph (a)(2) does not apply. Loyhayem’s case is still governed by paragraph (a)(1), which requires that prior express consent have been given either orally or in writing.

Well, orally, or in writing, “or otherwise”–which includes presumed express consent anytime the called party provides the number for a purpose closely related to the purpose for which the caller is calling. I’m sure that’s what the Ninth Circuit meant. And I’m sure no one will argue otherwise.

Yep. Nothing to see here. Just a totally inaccurate articulation of a critical rule that callers rely on all the time. By a Circuit Court of Appeals. In a published case.