As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required? Continue reading “District Court Finds Text Message With Link To Sender’s App Might Qualify As Advertising”
Category - "Text Messages"
District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing
As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading “District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing”
Federal Court Holds Mobile App Platform Did Not Make or Initiate Invitational Text Messages, Grants Summary Judgment
In a recent decision by the Southern District of California, summary judgment was entered in favor of a second-hand fashion retailer, Poshmark, in a putative class action. The court concluded that the user of the app, not Poshmark, had “made the calls” that invited the plaintiff to use the mobile app. See Reichman v. Poshmark, Inc., No. 16-2359, 2017 U.S. Dist. LEXIS 73769, at *11 (S.D. Cal. May 15, 2017). Continue reading “Federal Court Holds Mobile App Platform Did Not Make or Initiate Invitational Text Messages, Grants Summary Judgment”
Revocation of Consent Must Be Reasonable and Recollected
Two recent decisions rebuffed TCPA claims arising from calls or text messages that were received after the called parties had allegedly revoked their consent. The decisions reinforce that plaintiffs who intend to pursue such claims must: (1) revoke their consent in a reasonable rather than contrived manner; and (2) support their claims with specific facts rather than conclusory allegations. Continue reading “Revocation of Consent Must Be Reasonable and Recollected”
Northern District of California Rejects First Amendment Challenge to the TCPA
A federal judge in the Northern District of California recently denied a motion to dismiss a putative class action accusing Facebook of violating the TCPA by sending text messages reminding users about their friends’ birthdays. In so doing, the court rejected Facebook’s First Amendment challenge and found that the TPCA survived strict scrutiny. Brickman v. Facebook, Inc., No. 16-0751, 2017 U.S. Dist. LEXIS 11849 (C.D. Cal. Jan. 27, 2017). Continue reading “Northern District of California Rejects First Amendment Challenge to the TCPA”
Ninth Circuit Rules on Standing, Revocation of Consent
In a closely-watched appeal, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment on claims alleging that text messages were sent in violation of the TCPA and California’s Unfair Competition Law (“UCL”). The Ninth Circuit held that the receipt of a text message was sufficient to confer standing upon plaintiff for purpose of his TCPA claim, but insufficient to confer standing as to his UCL claim. The Court otherwise affirmed the summary disposition of plaintiff’s claim on the ground that plaintiff had not clearly shown his alleged revocation of consent to receive defendants’ text messages. Continue reading “Ninth Circuit Rules on Standing, Revocation of Consent”
Court Finds Plaintiff-Initiated Text Communication Does Not Constitute Express Written Consent
The Eastern District of California recently denied a motion to dismiss for failure to state a claim, despite the plaintiff having voluntarily initiated the text exchange at issue and having ignored immediately received opt-out notices. Larson v. Harman Mgmt. Corp., No. 16-0219, 2016 U.S. Dist. LEXIS 149267 (E.D. Cal. Oct. 27, 2016). Continue reading “Court Finds Plaintiff-Initiated Text Communication Does Not Constitute Express Written Consent”
Mobile App Operator Not Liable Under TCPA
In an important decision applying the FCC’s July 2015 Declaratory Ruling, a district court recently dismissed TCPA claims against Life360, a mobile application operator. See Cour v. Life360, Inc., Case No. 16-cv-00805-TEH (N.D. Cal. July 28, 2016). The decision provides critical guidance as to when users of a mobile app – rather than the mobile app provider – will be deemed to initiate the text messages, for purposes of assessing TCPA compliance. Continue reading “Mobile App Operator Not Liable Under TCPA”
Bradley Andreozzi and Justin Kay Discuss TCPA in Modern Healthcare
TCPA Blog contributors Bradley Andreozzi and Justin Kay were recently featured in a Modern Healthcare article about a class action targeting Prospect Medical Group’s Southern California Hospital at Culver City. The suit alleges that the hospital violated the TCPA when its patient department called the plaintiff’s cell phone without the requisite consent in an effort to collect on a debt for services rendered at the facility. The article examined how the hospital became one of the first providers to be sued following the Federal Communications Commission’s July 2015 Omnibus ruling that narrowed the FCC’s reading of the scope of the required prior express consent for automated calls to patients. Continue reading “Bradley Andreozzi and Justin Kay Discuss TCPA in Modern Healthcare”
FCC Releases Order Denying Club Texting’s 2009 Petition on Text Broadcaster Liability Standards
On January 11, 2016, the FCC’s Consumer and Governmental Affairs Bureau (“Bureau”) acted on a petition filed in 2009, and denied Club Texting, Inc.’s (“Club Texting”) petition for declaratory ruling, which asked the FCC to clarify that text broadcasters are subject to the same TCPA liability standard as that applied to fax broadcasters. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Petition of Club Texting, Inc. for Declaratory Ruling, Order, CG Docket 02-278 (Jan. 11, 2016) (“Jan. 11 Order”); see also Club Texting, Inc. Petition for Declaratory Ruling that Text Broadcasters Are Not “Senders of Text Messages Under § 227(b)(1) of the Telephone Consumer Protection Act, CG Docket 02-278 (Apr. 25, 2009) (“Club Texting Petition”).