(By Marty Stern and Artin Betpera) Last week, Marketron Broadcast Solutions beat back a putative class action lawsuit brought by New Orleans radio listener Renee Reese who claimed Marketron violated the Telephone Consumer Protection Act when it sent her a text message about a concert. Reese had heard a radio ad inviting her to text “JOYRIDE” to enter a contest for tickets to a Tenashe concert. She did, and in response Marketron sent a text confirming Reese had been entered to win, and included a Bitly link to purchase tickets to the show.
Reese claimed that the text violated the TCPA, which generally prohibits autodialed texts to wireless phones absent consent of the called party, and provides for damages up to $1500 per text. The statute is a favorite of the class action bar and plaintiffs. The court disagreed, summarily dismissing the case.
Under FCC rules the type of consent varies depending on whether the text is purely informational, such as school closing, traffic or weather information, or includes marketing information. Reese claimed that the text was a solicitation that required her prior express written consent (which she didn’t provide), and because it did not contain opt-out instructions.
The Court made quick work of both claims in granting Marketron’s motion to dismiss. The court found that Reese had provided consent to the text-back, and that the message was not a solicitation. Rather, according to the court, the text, consistent with a 2015 FCC ruling, was a permissible one-time informational text sent in direct response to a consumer’s inquiry – Reese’s texting “JOYRIDE” in response to Marketron’s on-air call-to-action.
In the 2015 FCC ruling, the Commission was responding to a request to clarify that text messages sent in response to a consumer’s reply to a call-to-action, such as the ticket contest here, or retailer campaigns inviting customers to text a keyword to receive a discount coupon, were permissible under the TCPA. The Commission found that a message responding to a consumer’s text is not telemarketing, because the consumer “requests and expects to receive the on-demand text message promptly in response.” The Commission also found that “a one-time text sent in response to a consumer’s request for information does not violate the TCPA or the Commission’s rules.” As is often the case, the FCC gives with one hand, and takes away with the other, and admonished that the one-time text back must contain “only the information requested by the consumer with no other marketing or advertising information.”
What was unusual about the Marketron case is that it tested the contours of that admonishment, as the text back to Reese not only included confirmation of her entry to win, but also the Bitly link to a site with information on how to purchase tickets to the very same Tanashe concert featured in the contest. This, she claimed, constituted telemarketing for which she had not consented, and violated the Commission’s admonishment on the inclusion of additional marketing information in the call-to-action text-back.
Nonsense, the court said, finding that the ticket information in the text-back info was for the same concert about which the listener had texted in, and that Reese had “invited a one-time confirmatory response containing information related to that concert.” In other words, according to the court, the text message did not contain advertising or telemarketing and Reese had provided consent to receive the message. As such, the court treated the message as containing “no other marketing or advertising information” consistent with the FCC’s ruling, and gave Marketron a pass.
Clearly, this is a fine line, of which Marketron was able to stay on the right side. Broadcasters should remain particularly cautious regarding any additional information included in these type of text-backs beyond that explicitly covered in the call-to-action and requested by the consumer, as crossing that line could result in a less than joyful ride.
As a final note, the court also rejected the plaintiff’s objection to Marketron’s failure to include opt-out instructions (such as “stop to quit”) in its text-back to Reese. The court noted that an FCC rule on opt-out instructions only applies to pre-recorded messages, and not to texts, and found that Marketron was not required to include opt-out instructions in its texts. That said, it is still a good practice to provide opt-out instructions in texts, which, among other things, provides an easy way for listeners to stop texts they don’t want to receive, and reduces the potential for missing opt-out requests through other means and the resulting potential exposure for subsequent texts after that request is made.
More on the TCPA and its impact on business communications can be found on the firm’s TCPA blog, TCPAland.com.
Marty Stern leads the Communications, Technology & Media practice at Womble Bond Dickinson, and advises broadcasters and other clients on TCPA compliance matters. He can be reached at 202-857-4417 or [email protected]. Artin Betera, is Senior Counsel in the firm’s Costa Mesa office and serves as a chief lieutenant on one of the nation’s most experienced TCPA class action defense teams. Artin can be reached at 657-266-1051 or [email protected].