Lyft’s TOS Can’t Save It From the TCPA (or Why Contract Law’s Version of Consent Needs to Get With the Program)

The FCC recently issued a Citation and Order to Lyft  which alleges that its terms of service violate the Telephone Consumer Protection Act (TCPA).  Under the TCPA, a company that wants to inflict autodialed phone messages or text messages for marketing purposes must first obtain the express prior written consent of the recipient. Furthermore, FCC regulations forbid requiring such consent as a condition of purchasing any goods, services or property. Significant penalties result from failure to comply with the TCPA and the accompanying rules.  Lyft has already updated its TOS in response to the FCC’s action.

Lyft’s terms of service required its customers to consent to autodialed calls and texts.  Prospective customers are required to check a box stating “I agree with the Terms of Service.”  The sign-up page includes a link to the Lyft TOS.  Section 6 of the Lyft TOS stated:

“By becoming a User, you expressly consent and agree to accept and receive communications from us, including via e-mail, text message, calls, and push notifications to the cellular telephone number you provided to us. By consenting to being contacted by Lyft, you understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Lyft, its affiliated companies and/or Drivers, including but not limited to: operational communications concerning your User account or use of the Lyft Platform or Services, updates concerning new and existing features on the Lyft Platform, communications concerning promotions run by us or our third party partners, and news concerning Lyft and industry developments. IF YOU WISH TO OPT-OUT OF PROMOTIONAL EMAILS, TEXT MESSAGES, OR OTHER COMMUNICATIONS, YOU MAY OPT-OUT BY FOLLOWING THE UNSUBSCRIBE OPTIONS PROVIDED TO YOU.Standard text messaging charges applied by your cell phone carrier will apply to text messages we send. You acknowledge that you are not required to consent to receive promotional messages as a condition of using the Lyft Platform or the Services. However, you acknowledge that opting out of receiving text messages or other communications may impact your use of the Lyft Platform or the Services.”

 The terms stated that consumers may opt out by using “unsubscribe options,” but the FCC investigation discovered that such an option didn’t really exist.  There was no easy way to find the unsubscribe option and consumers had to navigate Lyft’s website to find the opt-out page.  Even  if they did manage to find it, if they opted out, they couldn’t use the service. 

This is another instance where contract law’s easy assent rules don’t actually help businesses and cause too much confusion.  While a consumer may have “consented” to the autodialing and the texts under contract law, the FCC rules require something that is more like what most people consider to be consent – express written consent and a real choice not to agree.  A default opt-in unless you opt-out (and even that’s illusory), well – that just doesn’t cut it under the TCPA and the FCC rules.  Sadly, in contract law, too often it does.

Contract law should get with the program and follow the commonsense version of consent adopted by the FCC.