TCPAWORLD MAY NEVER KNOW: Court Weighing Smosh Liability for Texting Underage Kids Refuses to Answer the Question

So there was this commercial when I was a kid–hold the snickering—with this owl that would lick a lollipop while a voice inquires “how many licks does it take to get to the tootsie roll center of a tootsie pop?” before an intervening “crunch” sound and the phrase “the world may never know.”

Real classic bit of nostalgia there for all you Gen Xers who grew up in the 80s and remain awesome.

Well I am starting to feel the same way about whether calls and texts to underage kids violate the TCPA–the world may never know.

Setting the stage real quick, you all may remember the Plaintiff’s bar has developed this theory of the statutory rape of a cell phone. If folks under 18 can’t consent to… other things, the argument goes, they can’t consent to receive robocalls either.

This seems in line with U.S. Senator Tester’s philosophy that robocallers are equivalent to “child molesters”–if you haven’t seen this clip of him comparing the two, you should really watch it:

 Hmmm…. 

Anyway, the plaintiff’s bar says kids can’t consent to calls and since like 92% of kids over the age of 12 have smartphones in this country (for reasons I cannot fathom) there is a huge volume of calls being made (intentionally or unintentionally) to individuals who may or may not have the ability to consent to calls under the law.

I, for one, would really like an answer to this question. I have been waiting for it since October, 2021:

STATUTORY RAPE OF A CELL PHONE?: New Class Action Alleges that Minors Can’t Give Legal TCPA Consent to Be Called on the Their Cell Phones

In the meantime the Court has dismissed the case on standing grounds, only to have the appellate court revive it–with neither court answering the key question.

Now the case is back in front of the lower court and another ruling was handed down this week. Guess what–still no answer!!!

in Hall v. Mythical Venture (AKA Smosh) 2024 WL 316793 (C.D. Cal. Jan. 26, 2024) the district court refused to rule on whether or not kids can consent to cell phone calls. The court denied Defendant’s motion to dismiss and held it would address the issue at the summary judgment stage. Not much analysis here either:

The Court concludes that the issues raised by Smosh are more appropriately resolved on a motion for summary judgment. Accordingly, Smosh’s motion to dismiss Plaintiff’s Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) is DENIED

Ummm… yeah… thanks for that.

So the Czar must impatiently wait along with the rest of you for this answer. Really really big deal, obviously.

We’ll keep an eye on it.

Chat soon.