January 19, 2017
A federal court in California recently granted a summary judgment motion filed by Blue Shield of California (“Blue Shield”), allowing it to avoid liability for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Blue Shield relied on arguments of lack of standing under the Supreme Court’s decision in Spokeo, Inc. v. Robins, as well as an argument that it had the requisite consent to send the subject informational text message.
On what grounds did the Court absolve Blue Shield from TCPA-related liability?
Blue Shield ultimately escaped TCPA-related liability in this putative class action as a result of the court finding that it had the necessary consent to send an informational text to the plaintiff. The court’s decision focused largely on the distinction between text messages that contain advertisements, in which the sender must obtain prior express written consent from the recipient, and informational text messages, in which a sender must only have prior express consent from the recipient. Here, Blue Shield was deemed to have obtained such prior express consent by virtue of the fact that plaintiff had provided her cell phone number as part of her application for health coverage with Blue Shield. Accordingly, Blue Shield’s informational text message, a notification required to be sent pursuant to the Affordable Care Act by health insurers who intend to modify a subscriber’s insurance plan, was found to be closely related enough to the circumstances under which plaintiff had previously provided her prior express consent, thus exempting Blue Shield from liability under the TCPA.
It is important to note, however, that the court denied the Spokeo-based argument raised by Blue Shield. The court held that alleged TCPA violations inherently cause sufficient particularized harm through invasion of one’s privacy, and that a plaintiff should not be deemed to lack standing to bring a TCPA claim in the absence of allegations of more concrete injury beyond the mere receipt of a violative call or text message.
Protect Your Business from TCPA-Related Liability
This case demonstrates the continued aggressive pursuit of telemarketers for alleged autodialer-related TCPA violations in the text message marketing space. Typically, a text message marketer is required to obtain the prior express written consent of the recipient before sending a text message. However, this case highlights the fact that the consent threshold for informational text messages, as opposed to advertising text messages, is somewhat lower insofar as no written consent is required prior to sending such a text message. Regardless of the nature of the text message, given the regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel prior to embarking on any telemarketing campaign.
If you are interested in learning more about this topic or need to review your telemarketing practices and procedures, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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