Earlier this month, a putative class action text message lawsuit was filed in a Chicago federal district court against Checkers Drive-In Restaurants, Inc. ("Checkers") and its affiliate mobile marketer, alleging violations of the Telephone Consumer Protection Act ("TCPA").
Why should sellers and mobile marketers ensure that their text messages are TCPA compliant?
Checkers' Text Message Marketing Campaign
Checkers operates more than 850 Checkers and Rally's drive-thru restaurants in 29 states and the District of Columbia. As an advertising vehicle for its fast food products, Checkers works with marketing affiliates to offer digital coupons and other promotions to prospective and existing customers. Some such promotions offer coupon codes for free Checkers or Rally's menu items to consumers who use their mobile phones to text a specific keyword to a designated five-digit short code.
Louisiana resident Toby Branden, presumably enticed by a Checkers coupon offer, texted "Coupons" and "70117" to a Checkers mobile marketing short code. Branden alleges that mobile marketer Vibes Media, LLC ("Vibes") subsequently delivered multiple advertising text messages to her mobile phone number on Checkers' behalf.
Text Message Lawsuit
On November 3, 2017, Branden filed a putative class action text message lawsuit against both Checkers and Vibes in the U.S. District Court for the Northern District of Illinois (Case No. 17-cv-7947) on behalf of all cell phone users who received unauthorized text messages from Checkers or Vibes.
The complaint alleges that Checkers and Vibes violated the TCPA by sending commercial text messages to consumers without obtaining each recipient's prior express written consent to receive such messages. Braden's text message lawsuit claims that the Defendants texted thousands of consumers nationwide, and seeks damages of $500 to $1,500 per text message delivered.
Are Your Text Message Marketing Practices Compliant?
Text messaging (rather than voice or video calling) is now the most widely and frequently used smartphone feature. It should come as no surprise then that more sellers and marketers are capitalizing on the popularity of text messaging to promote their respective products and services to consumers.
However, as the above-mentioned text message lawsuit demonstrates, text message marketing campaigns that are not TCPA compliant place sellers and their affiliate marketers at serious legal risk. In fact, text message marketing is classified as a subset of telemarketing, and the Federal Trade Commission (FTC) and Federal Communications Commission (FCC) rigorously enforce the TCPA and its implementing regulations against both text message marketers and traditional telemarketers.
In addition, the Mobile Marketing Association (MMA) has established its own best practices and guidelines for text message marketing that are enforced by the Cellular Telecommunications Industry Association ("CTIA"). The CTIA reports non-compliant text message marketers to the major wireless carriers, which can shut down or suspend non-compliant text message marketing campaigns.
In light of the foregoing, to avoid future legal action and regulatory surprises, sellers and marketers should consult with competent counsel concerning their text message marketing practices and procedures.
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