iHeartMedia recently settled a texting lawsuit and agreed to pay $8.5M. The lawsuit alleged iHeartMedia sent out unsolicited text messages to its listeners in violation of the Telephone Consumer Protection Act. According to the lawsuit, iHeart asked its listeners to request songs and enter contests by sending text messages. iHeart would respond with text message advertisements. For more detail on what this lawsuit and settlement means to you, we turned to broadcast attorney John Garziglia and his team for more detail.
by John Garziglia and his team of TCPA experts
One of the more common excuses I hear from broadcasters is that the other guy is doing it. This $8.5M iHeart settlement is a warning that TCPA violations can be expensive. Just because another station is running a texting promotion does not mean that it is legal – it just means that the station is yet to be caught.
The TCPA prohibits texting any advertisement by automatic means without the prior express written consent of the texted party. There are certain exceptions but none are relevant to a radio station amassing listener mobile phone numbers through contesting or the request line for the purpose of future texting. Even automated non-advertising informational text messages from a radio station require a form of consent under the TCPA.
There are now apps available for smartphones that automatically notify a lawyer of businesses that sends texts in violation of the TCPA. The penalty for TCPA violations is from $500 to $1,500 per text which, when multiplied by hundreds or thousands of texts, can easily reach thousands or millions of dollars.
In addition to the danger of lawyers trolling for TCPA violations, the FCC has a special complaint web page titled “Unwanted Email and Text Messages” (https://consumercomplaints.fcc.gov/hc/en-us/articles/203332190-Spam-Unwanted-Email-and-Text-Messages) with a prominent “File a Complaint” button.
Simply put, if a radio station wants to send automated advertisements by text, it cannot do so without written consent of each mobile phone subscriber to which the text is sent. A text advertisement is anything encouraging the purchase or investment in property, goods or services. The TCPA categorizes a text as an advertisement even if a non-advertising message is included.
While it is difficult to imagine large numbers of radio listeners stating expressly in writing that they wish to receive advertising messages by text, information coupled with advertising could be a desired service. Prior to instituting such a system, however, a radio station should carefully vet the entire texting venture with legal counsel as any automated sending of advertising in a text message puts it into the TCPA advertising category that requires prior written consent.
Even with careful planning, automated text sending to listeners can incur unwanted liability. There is a one-call safe harbor for texting a previously-consenting phone number that is now assigned to a new subscriber (think burner phones, for instance). Further, a consenting radio listener must be able to withdraw prior texting consent “in any reasonable way at any time”. Finally, a radio station cannot escape TCPA liability by employing a contractor or third-party service to send text messages.
While not comprehensive and certainly not legal advice, if your stations are engaging in automated texting in any fashion, here are some basic considerations: — Are you obtaining express written consent prior to texting any advertising messages to listeners?
— Are such written consent forms clear as to what is being consented to?
— If the text messages being sent are not advertising but are strictly informational, are you still obtaining some form of consent?
— Are your opt-out methods to withdraw consent easy to use and do they actually work?
— Do your contracts with third-party vendors or marketing partners require TCPA compliance by them and their agents?
Texting is an attractive method for two-way communications between radio stations and listeners. There is no restriction at all in asking listeners to send text messages to a radio station. And, generally speaking, a personalized non-automated radio station message sending a one-time response to a listener’s text does not create TCPA liability.
If, however, listener mobile phone numbers are used for automated texting purposes, the TCPA immediately comes into play with the potential for significant liability. Be certain that your texting is TCPA rule-compliant. Each text in violation of the TCPA could cost your station $500 (or more) and add up quickly.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or by e-mail at Garziglia, John [email protected]