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Recipients of text messages offering three weekly “flirting tips” for $9.99 per month say they never agreed to be charged for the advice after they ignored the texts. According to a class-action complaint (PDF) pending before the U.S. District Court for the Northern District of California, though, the amounts appeared on the plaintiffs’ cell phone bills anyway. To make matters worse, lead plaintiff Andrew Humble says, the sender never even provided the promised guidance.
Recent lawsuits have highlighted potential pitfalls for companies that use or provide mass texting services. Like telephone and email marketing, the practice of contacting potential customers directly via text messages has generated its own legal questions and controversies. Resolution of these issues will help shape text messaging’s future as an advertising medium, and will impact millions of users’ daily texting experiences.
The Telephone Consumer Protection Act is the basis for key portions of complaints like Humble’s. The TCPA typically bans the use of automatic telephone dialing systems to call mobile phone numbers without the prior express consent of the party receiving the call, and the Ninth Circuit Court of Appeals has held that this provision applies to text messages (PDF). While defendant Wise Media, LLC claims that customers voluntarily enrolled to receive flirtation tips, Humble alleges that he had no relationship with the company and that it used specialized equipment to obtain his number without his knowledge or consent. Humble seeks to recover the class members’ actual monetary losses or the $500-per-message fine provided under the TCPA, whichever is larger, as well as other costs and damages.
Beyond direct marketing companies themselves, owners of group-messaging apps and providers of “short codes” that can be used to address text messages have also become targets of TCPA complaints in the Northern District of California. The role of third-party users who send text messages using these companies’ services complicates the TCPA analysis in some cases.
Google-owned group texting service Disco, for instance, is currently defending a class action stemming from promotional texts it sent to numbers that Disco users had entered into its app. The lead plaintiff alleges that he received over one hundred text messages (PDF) within a short time after a Disco customer placed him on a list of group text recipients. Judge Yvonne Rogers recently rejected an argument that the texts are protected speech under the First Amendment, and has declined to rule that the TCPA does not apply to Disco.
Other cases may hinge on FCC resolutions to new questions that are specific to the text message context. For example, in a case against messaging companies Twilio and GroupMe, short code provider Twilio argues that the FCC should designate it as a “common carrier” that is immune from liability for the actions of third-party users.
While the circumstances of each case differ, text message marketers and providers of group messaging platforms are taking notice. Even in cases that do not make it to trial, settlements may require defendants to pay hundreds of dollars per message. The pending cases will provide crucial guidance as companies tailor their products and strategies to maximize results while avoiding legal risks.
– Erica Stauffer
Erica Stauffer is a former JETLaw Notes Editor.
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