Hardly a week goes by without news of yet another company being tripped up by the provisions of the Telephone Consumer Protection Act, or TCPA. For many years, the eye-popping damage awards and settlements were in the context of “junk faxing,” i.e., fax blasts of advertisements that failed to comply with the Junk Fax Prevention Act, an amendment to the TCPA passed in 2005, and the related rules adopted the following year by the Federal Communications Commission.
Fax cases still make the news from time to time, but the newest battleground is texting. Earlier this month, a New Jersey federal judge in Trenton gave preliminary approval to a $1.4 million settlement of a class action lawsuit alleging that retailer Bloomingdale’s sent unsolicited spam text messages to members of its “Loyalist” program. The crux of the case was a single text asking each recipient to reply with “Y” in order to receive further promotional texts. But that initial text was not the result of a customer-initiated request for a text. Nor was it preceded by the customer providing express consent during the sign-up for the Loyalist program. While there is some precedent that a single unauthorized text alone should not be actionable, Bloomingdale’s chose to settle. This happened three years after the complaint was filed, which suggests that the settlement amount was only a fraction of Bloomingdale’s defense costs.
Also earlier this month, a class action was filed against Kohl’s in Florida alleging that a request initiated by a customer’s text for a single coupon to be sent by return text could not provide the necessary consent for a subsequent text coupon. Urias v. Kohl’s, Docket No. 0:18-cv-61800-RNS (S.D. Fla. Aug. 2, 2018.) While the outcome of this case cannot yet be determined, even if Kohl’s ultimately prevails it will be only after a substantial expenditure of resources.
The fact is that texting can be a powerful way to engage with customers. The rules are complicated and one slip-up can lead to a crippling penalty because the law allows for a penalty of $500 to $1500 per violation. So any business planning to use texting as part of its marketing efforts must consider the following questions:
- Has the customer unequivocally and unambiguously consented to receiving texts from us? (PS – oral consent is not sufficient).
- As part of obtaining consent, did we clearly tell the customer that “Message and data rates may apply?”
- And that consent is not required to make a purchase?
- And how often to expect texts from us?
- Does every text message we send contain instructions as to how to stop future messages, such as by replying “STOP?”
- And how to get help, such as by replying “HELP”
Careful planning for each step of any text marketing campaign will help ensure that you do not end up on the wrong side of a class action lawsuit. Leave the defense of those to the Bloomingdale’s and Kohl’s of the world (and Papa John’s and Jiffy Lube, to name a couple of other prominent examples.)