Earlier this year, Fred Weiss, a Pittsburgh Penguins hockey team fan, responded to an offer to receive text messages alerting him to team news and special offers. Although the terms pertaining to the call-to-action apparently promised Weiss that he would receive no more than three messages per week, he alleges that he received five messages the first week and four the following week. Instead of simply following the alerts’ unsubscribe instructions, Weiss filed a putative class action lawsuit against the hockey team, alleging that its delivery of more messages than promised violated the federal Telephone Consumer Protection Act (TCPA).
The TCPA generally prohibits the delivery of a text message without the recipient’s express consent. In his complaint, Weiss has alleged that the delivery of messages in excess of those to which he had agreed (i.e., three per week) was without his express consent, and, for each of those violating messages, he says that he—and his fellow class members—should therefore receive the prescribed statutory damages of at least $500. Statutory damages per violating message could go up to as much as $1,500 if the Penguins are found to have willfully or knowingly violated the law.
Some may wonder why the Penguins would have made a message frequency promise in the first place. Widely followed industry guidelines issued by the Mobile Marketing Association (MMA) state that a marketer should provide certain information to consumers when seeking their consent to receive recurring text messages—including the fact that the consumer’s mobile carrier’s message and data rates apply, as well as how many messages the consumer can expect to receive. These disclosures give the consumer the information that he or she needs to make an informed decision regarding whether to sign up. The MMA guidelines do not have the force of law, but they are intended to help ensure that marketers comply with mobile carrier requirements. Moreover, while a message frequency disclosure is not expressly prescribed by law, the Federal Trade Commission (FTC) or a state regulator could take the position that a failure to tell a consumer, before he or she subscribes, how many messages to expect is an omission of material information and therefore deceptive. Marketers are therefore advised to make the disclosures imposed by the MMA guidelines.
As the ongoing Penguins litigation highlights, however, making the disclosures is not enough: the marketer must also take care to abide by its own promises. A failure to do so may give rise not only to a private cause of action under the TCPA—a very hot area for plaintiffs’ attorneys over the past couple of years—but could also lead to an enforcement action by the FTC or a state regulator, charging that the marketer’s failure to follow its own promises was deceptive. The bottom line is that companies sending text messages to consumers need to ensure that they are in compliance with their own representations regarding such messages, or they may find themselves in the penalty box.