Alert: Twitter and Amex
subject to TCPA Class Action Lawsuits for Sending Confirmatory Text Messages
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Recent text messaging class
action lawsuits filed in a California federal court allege violations of the
Telephone Consumer Protection Act (“TCPA”), notwithstanding the senders’
compliance with the Mobile Marketing Association U.S. Consumer Best Practices,
Version 6 (“MMA Best Practices”). This new development adds to the
complexity and confusion regarding compliance with various laws and
guidelines for text messaging. In Moss v. Twitter, Inc.
and Maleksaeedi v. American Express
Centurion Bank, each defendant sent the plaintiffs a single text message
to confirm the plaintiffs’ opt-out request from future text messages.
Confirmatory messages of this nature are required under the MMA Best
Practices and are a standard industry practice. However, the plaintiffs
allege that the confirmation messages sent using an automatic telephone
dialing system were negligently and/or willfully sent after the plaintiffs
exercised the “STOP” mechanism, thereby withdrawing any explicit or implied
consent for receiving text messages from the defendants. The TCPA
requires prior express consent for non-emergency messages sent to a mobile
device using an automatic telephone dialing system in which the called party
is charged for the call. These lawsuits therefore
raise issues regarding authority to send any confirmatory text message, such
as a bounce-back text message to confirm a text-to-win or text-to-vote entry
or other consumer-initiated text or transaction. Furthermore, because
class status is being sought for any person who received an
unsolicited confirmatory text message from the defendants within the four
years prior to the filing of the complaints, the potential scope of liability
for the sender of any such message is enormous. Hundreds of thousands
of confirmation text messages are likely to be subject to this lawsuit, and
statutory damages for violations of the TCPA are assessed at $500 per
message. We cannot predict the
outcome of these lawsuits, but based on the potential for substantial
liability for text messaging campaigns, we recommend that a sender secure
prior express consent to send any type of confirmatory text message at the
time the consumer either initiates a text message or subscribes to a text
message service. To be effective, such consent must be affirmative and
cannot be buried in a terms of use or subscription agreement; as a further
precaution, we advise that notice regarding confirmation messages nonetheless
also be included in such documents. Moreover, a sender cannot send a
text message to secure consent to send a text message. Therefore,
express consent must be secured via other means. The following are
recommended steps based on the form of consent and type of text message: Via
website subscription or registrations: 1. Request express affirmative consent at the point of
registration with an unchecked check box prior to the “I AGREE” submission
button and this suggested text, “I agree to receive confirmation messages
from [Insert name of sender] via this mobile number. Message & Data rates
may apply.” 2. Include a disclosure statement in the terms of use or
subscription agreement: “By submission of your entry, you hereby expressly
consent to receive a confirmatory reply message for each entry or
transaction. You also agree that if you wish to terminate this
subscription [service], sending the “STOP” command indicates your affirmative
express consent to receive one additional message confirming that we have
received your opt-out request. Message and Data rates may apply.” 3. Include notice of confirmation to be sent with “STOP”
instructions in all text messages (see below). Via
text-to-win or text-to-vote call to action: 1. Add the following statement to the call to action
delivered on radio or television: “By your entry, you
consent to receive confirmation text. Message and Data rates may apply.” 2. Add the following statement to the call to action
delivered in print or on a website: “By submission of your
entry, you hereby expressly consent to receive a confirmation reply message
for each entry or transaction; Message and Data rates may apply.” 3. Include a disclosure statement in the official rules or
terms of use: “By submission of your entry, you hereby expressly consent
to receive a confirmatory reply message for each entry or transaction;
Message and Data rates may apply.” 4. Include notice of confirmation to be sent with “STOP”
instructions in all text messages (see below). Via
text message: Include the following
statement with standard “STOP” and “Msg & Data
rates apply” instructions: “Will confirm w/Reply”. If you have any questions
or any further information regarding mobile marketing, please contact S.
Jenell Trigg (strigg@lermansenter.com;
202-416-1090) or Louis J. Levy (llevy@lermansenter.com;
202-416-6748). June 30, 2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2011, Lerman Senter PLLC 2000 K Street NW,
Suite 600 | Washington, DC 20006-1809 To Unsubscribe: Unsubscribe | To Update Client Info: Update Client Info |
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