By Emily Faracca – On
Even with consent, this TCPA consent case got ugly fast.
When the Plaintiff filled out the necessary paperwork to adopt his furry little friend, he provided his phone number on several documents. Soon after, the Plaintiff got a prerecorded message reminding him that he had received a free 30-day gift of the Defendant’s pet insurance services. In a class-action suit, he claimed a TCPA violation and moved for summary judgment. Note TCPA Compliance 101: providing your cellphone number on a contract typically means "consent." But that wasn't the case here.
The reason the Defendant could not claim the plaintiff provided consent was as follows:
"The consumer needs to provide consent in a written agreement that’s signed, and that specifies the phone number at which the consumer is authorizing calls to be made. The consumer also must be provided with certain “clear and conspicuous” disclosures." (TCPALand)
According to the court, that did not happen here. As a result, the Court had to analyze the message to determine if it was an advertisement.
As defined under the TCPA, an “advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services.”
The court determined it was, in fact, an advertisement, referencing a few elements of the message as well as previous cases.
Namely, because the message pointed the Plaintiff in the direction of an e-mail they had sent prior (which explicitly contained an advertisement.)
After all was said and done, the Plaintiff was awarded $6,000 for the trouble.
What You Need to Know
As a retailer, insurance company, or really any business asking for a cellphone number, keep in mind you must include “clear and conspicuous” disclosures on all documents, especially for tcpa cell phone consent. Orlando based attorney Donald Petersen advised the following for Club Industry:
- Always obtain expressed written consent from any marketing prospect you plan to contact
- Update the terms of your agreements as new technologies arise
- Be careful with mass communication that is not promotional in nature. Non-promotional communication, such as a holiday party invitation, is legal. However, if the business is actively selling memberships or services at the holiday party, there is the potential that it would be considered a promotional communication.
- Maintain an internal do-not-call list and remove contacts from marketing communications within 30 days of a request to be removed. The penalty for violating a do-not-call list is up to $500 per violation under the TCPA. The junk fax, cell phone and prerecord call violation is $500 per violation. If a violation is found to be willful, the penalty can be up to $1,500. These fines can be stacked for multiple violations on a single communication, potentially resulting in thousands of dollars per communication.
- Follow this topic closely so you can assure you remain in compliance.