May 3, 2016
Last week, two separate class action complaints were filed in a Chicago federal court against Donald Trump’s official campaign committee: Donald J. Trump for President, Inc. (“Trump for President”). Both lawsuits claim that Trump for President’s text message marketing practices violated the Telephone Consumer Protection Act (“TCPA”).
How does the TCPA create legal risks for businesses that deliver text messages?
Trump for President’s Text Message Marketing Campaign
During the course of Donald Trump’s campaign for the Republican presidential nomination, Trump for America reportedly delivered the following text message to wireless phone numbers throughout the United States:
Reply YES to subscribe to Donald J. Trump for President. Your subscription will help Make America Great Again! Msg&data rates may apply.
Trump for America purportedly conducted the text message marketing campaign through use of the online mass text messaging platform Tatango.
This March, Illinois residents Joshua Thorne and David Roberts allegedly received the above-referenced text message from Trump for America. Both men claim that Trump for America never obtained proper TCPA consent before delivering the subject text messages.
Last Monday, Thorne commenced a federal class action lawsuit against Trump for America in the U.S. District Court for the Northern District of Illinois (Case No. 1:16-cv-04603) on behalf of all individuals who did not provide their wireless phone numbers to Trump for America but, nonetheless, received text messages from the campaign committee. The very next day, Roberts filed a similar class action complaint against Trump for America in the same district (Case No. 1:16-cv-04676).
Both plaintiffs allege that Trump for America violated the TCPA by unlawfully delivering text messages to thousands of consumers throughout the nation who never provided their wireless numbers or otherwise consented to receive text messages from the campaign. While a limited TCPA exemption exists for political campaign-related calls to landline phones, political robocalls or text messages to wireless numbers do not enjoy such an exemption and may only be made/delivered with the prior express consent of the called party.
Each of the lawsuits discussed above is seeking statutory damages of $500 for each and every text message sent by Trump for America in violation of the TCPA, treble damages of up to $1,500 per text message, as well as injunctive relief and attorneys’ fees.
Are Your Text Message Marketing Practices Compliant?
Text messaging (rather than voice or video calling) is now the most widely and frequently used smartphone feature. It should come as no surprise then that more sellers and marketers are capitalizing on the popularity of text messaging to promote their respective products and services to consumers.
However, as the above-mentioned cases demonstrate, text message marketing campaigns that are not fully compliant with the TCPA place sellers and marketers at serious legal risk. In fact, as we reported this March, text message marketing is technically classified as telemarketing, and the Federal Communications Commission (“FCC”) has vowed to rigorously enforce the TCPA and its implementing regulations against both text message marketers and traditional telemarketers.
In addition, the Mobile Marketing Association (“MMA”) has established its own best practices and guidelines for text message marketing that are enforced by the Cellular Telecommunications Industry Association (“CTIA”). The CTIA reports non-compliant text message marketers to the major wireless carriers, which can shut down or suspend non-compliant text message marketing campaigns.
As such, in order to avoid future legal action and regulatory surprises, sellers and marketers should consult with competent counsel concerning their text message marketing practices and procedures. If you are interested in learning more about this topic, or need to review your text messaging marketing practices, please e-mail us at firstname.lastname@example.org, 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 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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