EBay and PayPal Push the Boundaries of Prior Express Consent

The New York Times reported yesterday that EBay has revised its user agreement (which will take effect June 15) to include a statement that has raised concerns among state regulators. Here is the excerpt from the section “Authorization to Contact You; Recording Calls” [bold emphasis added]: 

“You consent to receive autodialed or prerecorded calls and text messages from eBay at any telephone number that you have provided us or that we have otherwise obtained. We may place such calls and texts to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; (vii) contact you with offers and promotions; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Standard telephone minute and text charges may apply.

eBay may share your telephone numbers with our service providers (such as PayPal, billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under this User Agreement, our policies, applicable law, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

Evidently PayPal has added a similar statement, scheduled to take effect on July 1. This is certainly the kind of protection that collectors would love to see in their clients’ contracts as it covers the matter of prior express consent. Or does it? The New York Attorney General has sent letters to both firms requesting more information about the new policy.

According to the Times article, “among the questions the letters asked the companies to answer: How can a customer consent to being robocalled on a telephone number if he or she did not provide the number in the first place? And just how can you opt out of this?”

The moves by Ebay and PayPal come on the eve of a June 18, 2015 FCC Open Meeting where the Commissioners are scheduled to vote on proposed Declaratory Rulings  that FCC Chairman Wheeler believes will close loopholes and strengthen consumer protections already on the books. One could easily argue that the proposed changes to the user agreements fly in the face of Chairman Wheeler’s plans.

It is not just the New York Attorney General that is interested in this move by Ebay and PayPal.  Consumer Rights attorneys will likely be monitoring this situation intently.  The TCPA has been a hotbed of class action litigation in recent years as the statute is so Draconian and the potential liability so great. (Not to mention the potential for the award of large attorney fees.)   This is precise the type of fact scenario that leads to class action litigation.