Legal Newsline

Tuesday, October 15, 2019

TCPA litigation evolving to include text message opt-out responses

By Chandra Lye | Feb 28, 2017

NEWARK, N.J. (Legal Newsline) – A group of attorneys has warned that the "next wave" of class action lawsuits has been bringing into question the businesses’ responsibility when it comes to customers opting out of text message programs.

Lawyers with New Jersey firm McCarter & English LLP have been seeing an increase in Telephone Consumer Protection Act (TCPA) litigation in which customers claim they withdrew consent to receive text messages but did not follow the directions set out by companies.

“The senders or businesses will often say, ‘If you don’t want to receive these messages anymore just respond with the word stop' or some instructions similar to that," attorney Edward Fanning said.

"What we are seeing in these lawsuits getting filed and demand letters being served on our clients where the customers aren’t following the relatively easy steps that are provided by the businesses to opt out or stop receiving these communications."

He said the customers were often typing more cumbersome messages that don’t express that intent as clearly.

“The consumer may type 'Please do not text me anymore’ or even a cryptic message to indicate the revocation of prior consent. The company therefore does not register this withdrawal of consent, and often continues to send the customer text messages,” Fanning and his co-workers wrote in an article.

“As a result of that lack of clarity, they continue to get messages and then they claim that is a violation of the TCPA because the business continued to send them messages,” Fanning said.

He also said they had noticed an increase in clients needing advice for similar issues, as well as an increase in lawsuits.

“Our clients are the first to see these issues,” Fanning said. “They often get demand letters from lawyers representing consumers who threaten class action lawsuits against them.

“We also see the filings on the dockets in the jurisdictions where we practice. We are seeing this uptick both from what we are hearing from clients and also what we see getting filed in the courts.”

In the article, the attorneys from the firm warn companies may be a target if they do not offer customers a chance to withdraw consent to getting the text messages.

Part of the problem, they argue, is there hasn’t been clear direction on how to interpret the law in light of new technologies.

The TCPA was passed more than 25 years ago and was originally intended to protect customers from intrusive phone calls from telemarketers. The legislation has evolved as telecommunications have changed.

In the case of Satterfield v. Simon & Schuster Inc. in 2009, a court extended the Act to cover text messages sent to mobile phones. As a result of that ruling, the Federal Communications Commission and the other courts have adopted it.

“The TCPA does not contain any express language granting consumers the right to revoke their prior express consent to receive calls or text messages, nor does the statute proscribe the manner in which such revocation must be expressed,” the article stated.

Fanning said he would welcome some clarity from the FCC “as to what a safe harbor would be for the mechanisms that a business can provide for customers to revoke their consent would be helpful.”

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