In Newell v. JR Capital, LLC, a Pennsylvania federal court recently considered, among other things, whether the Telephone Consumer Protection Act’s (“TCPA”) caller identification (“Caller ID”) requirements apply to text messages. Below, we discuss the decision in detail and its implications for telemarketers.
Private Right of Action for Failing to Comply With Caller ID Requirements
Newell alleged that he received five unsolicited text messages from JR Capital advertising its products. Every text message contained a link to the JR Capital website, and four of the messages included a contact phone number. In the Complaint, Newell alleged, among other things, that JR Capital’s text messages violated the TCPA regulations establishing Caller ID requirements (“Caller ID Regulations”). JR Capital moved to dismiss the Caller ID Regulations claim arguing that: (1) no private right of action exists under the Caller ID Regulations; (2) the Caller ID Regulations do not apply to text messages; and (3) the text messages otherwise complied with the Caller ID Regulations. The Court rejected these arguments and denied JR Capital’s Motion to Dismiss.
In evaluating the motion, the Court first rejected JR Capital’s argument that there was no private right of action for violating the Caller ID Regulations. In doing so, the Court analyzed the administrative history of the Caller ID Regulations. In the Court’s view, Caller ID was a network technology which the Federal Communications Commission (“FCC”) assessed as an available method for protecting telephone subscribers’ rights under the TCPA. As such, the Court held that the Caller ID Regulations fall within the ambit of the TCPA’s statutory subsection which provides for a private right of action.
Second, the Court found JR Capital’s arguments that the Caller ID Regulations did not apply to text messages unpersuasive. In doing so, the Court principally relied upon the FCC’s 2003 TCPA Order (“TCPA Order”), which clarified that the Caller ID Regulations required “all companies conducting telemarketing to transmit caller identification (caller ID) information.” In the TCPA Order, the FCC further commented that it decided to “require all sellers and telemarketers to transmit Caller ID information, regardless of their calling systems.” Viewed through this lens, the Court held that the FCC intended for the Caller ID Regulations to apply broadly such that they applied to text messages. As a result, the Court denied JR Capital’s Motion to Dismiss.
Third, the Court found that none of the texts JR Capital sent to Newell complied with the Caller ID Regulations because they failed to include the name of the seller or the telemarketer. Although the subject texts contained a website link, the Court determined that the website link differed from the name “JR Capital.” While clicking the link embedded in the text messages directed Newell to JR Capital’s website, the Court determined that clicking the link placed the onus on text recipients to do so, in clear contrast with the TCPA’s purpose of protecting consumer privacy.
TCPA Caller ID Requirements Apply to Text Messages
If your company sends commercial text messages, it is crucial that you identify your company, or the name of the entity on behalf of whom the messages are sent. Even if your company hires outside vendors to conduct telemarketing campaigns, you may be found vicariously liable for TCPA violations committed by these vendors. Given the volume of marketing text messages capable of being delivered at one time, companies named as defendants in TCPA lawsuits may find themselves exposed to significant potential liability, especially if the lawsuit is brought as a class action.
Fortunately, the attorneys at Klein Moynihan Turco (“KMT”) have a wealth of experience in providing TCPA compliance advice and TCPA litigation defense. Utilizing this vast experience, KMT’s attorneys have successfully defended countless companies involved in TCPA class action lawsuits.
If you need assistance with updating your telemarketing practices and procedures or have been sued for violating the TCPA, email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking 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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