Nobody likes getting unsolicited sales calls from an automated telephone dialing system (ATDS). They’ve interrupted more than a few family dinners and in 1991 the Federal Communications Commission created the Telephone Consumer Protection Act (TCPA) to help reclaim the home phone lines once and for all.
But TCPA only went unchanged for so long; the advent of cellphones, texting and smart devices provided the gray space sales callers needed to push their way back into the handsets of most consumers. In 2012, the FCC attempted to rectify these changes by including text messaging under TCPA.
Major amendments in 2012 included new disclosure agreements that would require prior expressed consent from users. A lot of marketers assumed this cancelled existing agreements and scrambled to send millions of opt-in agreements to existing users to meet the new requirements. However, some marketers just changed their Terms and Conditions (T&C’s). This confusion at the onset of changes made to the TCPA caused major riffs across the industry and strong divisions in the meaning of expressed language.
On the surface, this would seem like bad news for mobile marketers, or for telecommunication sales in general, but several recent court cases tell a different story, one that leans in favor of the marketers, and for some surprising reasons.
A Recent Case Study
Most recently, on Nov. 17, a California Federal Judge granted defendant Microsoft Corp.’s motion to dismiss the TCPA action filed against them by two individual plaintiffs.
The plaintiffs argued that Microsoft had violated the amendments made to the TCPA because Microsoft did not first obtain “expressed written consent” before sending SMS promotions. Instead, Microsoft (like hundreds of retailers) gained permission by getting customers to enter their phone number for sweepstakes or special promotions via the web or in-store applications.
In other court cases, judges have rejected the application of TCPA in cases altogether, citing SMS messaging outside the definition of traditional ATDS.
If this sounds like a loophole, it is.
From the judges ruling, “…the allegations are clear that it was Plaintiffs who initiated the receipt of text messages from Microsoft by voluntarily participating in Microsoft promotions.”
This can be good news for text marketing companies and business that use SMS for marketing. As for consumers, most people don’t realize that by providing personal information, like a cell phone number or an address, they’re agreeing to engage in an exchange of some kind with the company. This however, doesn’t mean that consumers can’t protect themselves against unwanted solicitations.
By understanding when solicitation starts, in this case, the point at which the plaintiffs forked over their phone numbers, consumers can benefit from the same protections that were intended by the original amendments.