- June 15, 2012
- Posted by: Seth Heyman
- Categories: Business Law, Marketing & Advertising Law
The Telephone Consumer Protection Act (TCPA) has created a virtual cottage industry of consumers and class action attorneys seeking to exploit the private right of action that grants them the opportunity to seek damages for violators. Plaintiffs can sue for actual damages or $500 per violation, with penalties tripled for willful violations, and may also institute class actions against violators.
Before the advent of text messages, the only targets for TCPA lawsuits consisted of telemarketers and the companies that employed them. Because courts have recently expanded the TCPA to include the sending of commercial text messages, the range of potential targets has greatly expanded.
Take, for example, a recent California class action lawsuit filed by a disgruntled fan of the Pittsburgh Penguins hockey team. Like many professional sports teams, the Penguins offer their fans the opportunity to receive text message alerts about breaking news, player trades, scores, team products and events.
The TCPA requires that marketers obtain prior express consent before sending promotional text messages. In his complaint, the plaintiff claimed that, despite having consented to receive text messages from the Penguins, the team violated the TCPA by sending more text messages per week than it stated it would send, which the plaintiffs states was a maximum of three messages per week.
The plaintiff claims that in the first week after subscribing he received five text message alerts from the Penguins, and four the following week. Smelling potential profit, he then filed suit, claiming that any promotional text messages sent in excess of the agreed-upon three-per-week were unsolicited text messages sent in violation of the TCPA. The plaintiff also included a claim for breach of contract.
This complaint illustrates the dangers faced by everyone seeking to maintain contact with customers, followers, and fans for any sort of commercial purpose. When there’s money to be made, rest assured that someone will take advantage of it, so when seeking permission to send text messages, don’t set a limit, and if you do, make it a high one.