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Monday, July 23, 2012
by Thomas O'Toole
Morrison & Foerster’s Socially Aware blog has an interesting post about a California man who filed a putative class action lawsuit against the Pittsburgh Penguins hockey team for failing to honor the team’s alleged promise to send him no more than three text messages each week.
After receiving five messages the first week and four messages the following week, the plaintiff could endure it no more and went off in search of legal redress at the offices of Edelson McGuire, a leading supplier of class action litigation to the technology industry. Edelson’s solution: Weiss v. Lemieux Group L.P., No. 12-cv–4585 (C.D. Cal., complaint filed May 25, 2012.
If you look at the Pittsburg Penguins opt-in page, you can see the basis of the plaintiff’s complaint: “Maximum of 3 messages a week.”
Edelson is alleging that each message over and above the Penguins’ self-imposed three-message limit is a violation of the Telephone Consumer Protection Act, 47 U.S.C. 227. The TCPA is a 1991 law intended to protect the privacy of residential telephone subscribers against intrusive robo-calls by telemarketers. The TCPA provides a private right of action against marketers who violate the law, and statutory damages of $500 per unlawful call ($1500 per call if the violation was knowing and willful).
The Ninth Circuit held in Satterfield v. Simon & Schuster Inc., 569 F.3d 946 (9th Cir. 2009), that unsolicited cell phone text messages are “calls” within the meaning of the TCPA, thereby setting off a wave of lawsuits challenging marketers’ use of text messages.
The authors of the Socially Aware blog post surmise that the Penguins published a three-message-per-week limit because they were following the Mobile Marketing Association’s best practices guidelines for mobile advertising. The guidelines suggest that mobile marketers should provide information about the frequency of the messages that a consumer can expect to receive. But I don’t think the guidelines necessarily require that a limit be published in the manner that the Penguins published it, which, as the complaint alleged, reads like a promise to not send any more than three messages each week. There is a difference between providing information and making a promise. Most privacy policies are pretty good at walking this line.
I'm reminded of my mom's frequent advice: If Billy told you to jump off a cliff you wouldn't do it, would you? Nothing in current law requires a marketer to publish or promise a limit on the number of messages that will be sent to a consumer who opts in to mobile marketing communications. It will, as they say, be very interesting to see how the Weiss case turns out.
Several recent decisions are going to bear on the Weiss lawsuit.
In the first one, Smith v. Microsoft Corp., No. 11–1958 (S.D. Cal., July 20, 2012), decided last Friday, the court held that the fact that the plaintiff did not incur data charges for allegedly unsolicited text messages did not deprive the plaintiff of Article III standing to sue for TCPA violations. In Gutierrez v. Barclays Group, No. 10-cv–1012 (S.D. Cal., Feb. 9, 2011), another court in the Southern District of California reached the same result. There is no allegation in Weiss that the plaintiff incurred data charges as a result of the Penguins’ text-messaging, so these two rulings are good news for him.
Better news for the Penguins can be found in the case of Ibey v. Taco Bell Corp., No. 12–583 (S.D. Cal., June 18, 2012), where the court, relying on congressional intent, held that messages merely confirming that the plaintiff had opted out of future text messages are not unlawful under the TCPA. Perhaps the Penguins can use the Ibey ruling to support the sort-of-related conclusion that text messages merely confirming that the plaintiff had opted-in to receiving text messages should not count against the Penguins' self-imposed three-message limit. In Weiss, it appears that two of the five allegedly unlawful text messages received during the first week were confirming his opt-in. (The Weiss complaint isn’t clear on this point. But that’s what happened when I opted-in to the Penguins’ text-messaging marketing.)
Two cases go the other way: Both Gutierrez and Ryabyshchuk v. Citibank, No. 11–1236 (S.D. Cal. Nov. 29, 2011), held that confirming text messages can violate the TCPA.
The main issue is whether, when a marketer sends a fourth text message after having promised to only send three, that extra message is unlawful under the TCPA. Is a fourth message "unsolicited" if the consumer clearly opts-in to receiving messages? Hard to say. Certainly this is not a scenario that Congress had in mind when it passed the TCPA. A court in an Ibey frame of mind could conceivably rule that the extra message is not what Congress intended to be treated as an "unsolicited" call or message. A court inclined to rule this way might conclude that the extra message is a breach of contract, leaving the plaintiff with economic, contract damages only.
I looked around the rest of the National Hockey League’s websites this morning to see what other teams are doing. It’s a mixed bag, to say the least.
Memo to Commissioner Bettman: I would be happy to help your lawyers fix all of your websites if you could get me four decent seats to the Winter Classic in Ann Arbor this year. Seriously.
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