The Good News… All Common Sense is Not Lost
Dismissing a Telephone Consumer Protection Act claim, a federal court in Washington found that the context in which the plaintiff provided his mobile phone number constituted enough consent to receive text messages under the statute.
Within “seconds” of submitting the web form, he received a sms message and an e-mail from the car-sharing service. The text message was comprised of 2 sentences: “Enter car2go activation code #145858 into the emailed link. We are looking forward to welcoming you.”
Now your thinking “come-on, right”? Well not all common sense is lost because the Washington judge used a little of that common sense and asked “Could a person who provided a phone number to a delivery type service seriously contend that they hadn’t given consent to be contacted by phone by the service to inform them that their package was on it’s way? Could a person who had provided a phone number to their mechanic say they did not consent to receive a call (or text) when their car was ready?” The court felt confident that Congress did not intend for that result when it passed TCPA.”
Tip: Running your database through a Do Not Call list scrubbing service can keep you on the right side of the TCPA & FCC.
No Good Deed Goes Unpunished
The Telephone Consumer Protection Act touches about every type of business, including pharmacies. In Jackson v. Safeway, Inc., the plaintiff received a phone call reminder from her Safeway pharmacy that it was time for her annual flu shot, which lead her to go to the Safeway pharmacy the following day to receive her shot. Naturally, after receiving disease-preventing medical treatment the next thing you should do is file a class action suit against the Safeway pharmacy for bothering to call. How does the old saying go about no good deed?
Thankfully the judge came to the right result for the right reasons. The exceptions for health care related messages in TCPA are reasoned and fair; they promote the public health and well-being; courts should apply them watchfully, as this court did.
Compliance is the key. Real Phone Validation + Do Not Call flag allows you to identify phone line type before you call.
All Web Leads Should Have Called RPV First
Ramos alleges that in October 2015, he was contacted by All Web Leads to solicit him to purchase their services using an auto dialing system or a prerecorded voice on his mobile phone. His number is listed on the National Do-Not-Call Registry and that the calls continued after he had revoked consent.
The plaintiff is requesting a jury trial and seeks judgment against the defendants, relief and all other damages that the court views as just.
Lead Gen Companies – increase quality and ROI with RPV real-time phone validation API only accept contactable numbers in your webforms and apps
New Record Reached in Telephone Consumer Protection Act Settlement
In what could be the largest TCPA settlement so far, a Northern District of Illinois federal judge has signed off on a deal requiring 3 cruise marketing companies to pay up to $76 million to call recipients in two separate classes (landline and cell phone).
The plaintiffs accused the defendants of making over 900,000 illegal auto dial or robocalls offering a free cruise in return for taking a survey. Berkley Group Inc., Caribbean Cruise Line, Inc., and Vacation Ownership Marketing Tours Inc. have continued to dispute the charges, but after 4 years of legal proceedings and on the eve of trial, they reached a settlement that includes a promise to create a common fund of at minimum $56 million and as high as $76 million.
Additionally, the marketing companies agreed to include prospective relief. For a 2-year period, they will each perform annual internal audits of each companies procedures to ensure they will not make robo and/or autodialed telemarking calls to either mobile phones or landlines “unless to the best of their knowledge, each call recipient has given their prior consent in writing agreeing to receive the calls.”
The takeaway – The days of multimillion-dollar TCPA settlements are far from over, and in fact, we may continue to see increasing settlement figures.
Lyft Faces TCPA Litigation for Sending Autodialed Texts Again
Lyft the popular get a ride service is facing a second class action lawsuit in CA alleging TCPA violations. The allegations are that Lyft sent unsolicited text messages to mobile phones using an autodial system without first obtaining express written consent, as required by the Telephone Consumer Protection Act. The plaintiff allegedly received two such unsolicited messages from the service – the first inviting him to download the Lyft mobile app and the second including a link to the download page on the app store.
This is not the first time Lyft is named in TCPA actions over its automatic dialer. Early 2016, a federal judge in CA denied Lyft’s request to dismiss a class action suit accusing the service of sending spam texts to prospective drivers in violation of TCPA. Previously, in Sept. 2015, the FCC notified Lyft Inc. that it violated the TCPA by requiring it’s users consent to receive automated text messages in order to use the service.
The takeaway – Prior express written consent is essential for all autodialed or prerecorded telemarketing & advertising calls or text messages to mobile numbers. Businesses and organizations should review and update their policies and compliance procedures to ensure they obtain proper consent, and offer an opt-out from promotional communications before beginning a call or text message-based marketing program.