The bad thing about texting is that, with a few exceptions, texts are forever. Texts can remain on a phone and be retrieved years later to allege TCPA violations. Also telephone numbers change — this may be what happened to CBS Radio as Ms. Bonin was using a prepaid wireless phone.
Many radio stations are using some form of text messaging to deliver information and advertising to listeners. I am fortunate to have as part of my team several lawyers who have done extensive work with the TCPA – Marty Stern and Rebecca Jacobs.
Let’s take a deeper dive into some TCPA questions:
What is the liability difference between sending unsolicited informational text messages, and sending unsolicited advertising text messages?
The liability is the same – both are violations of the TCPA and subject to statutory damages of between $500 and $1,500 per text sent. The only difference is in the type of consent required.
There must be “prior express consent” for unsolicited automated informational text messages. Then there is the higher standard of “prior express written consent” for unsolicited automated advertising text messages. What is the practical difference to these forms of consent and is this a distinction without a difference?
The practical difference is that prior express consent for informational calls without a telemarketing/advertising element may be given orally or in writing. If the message has a telemarketing or advertising element, the prior express consent must be in writing.
For non-advertising messages outside the radio realm, a consumer providing his or her mobile number on a credit application has been held, for instance, to provide consent for the non-advertising texting use of the number for debt collection purposes.
Prior express written consent for advertising messages, in contrast, has explicit elements and disclosures required by the FCC including that the consent must: be in writing and bear a signature; authorize the automatic delivery of advertising or telemarketing messages to that person; identify the subject texting phone number; and include a disclosure informing the person signing that by executing the agreement, such person authorizes the delivery of advertising text messages to their mobile phone and such person is not required to sign the agreement as a condition of purchasing goods or services. An electronic form of agreement and signature is permitted but must include the elements above.
Are the sports scores text messages shown in the CBS Radio lawsuit advertising messages or informational messages?
The FCC has generally viewed informational texts that deliver purely non-commercial information such as school closings as falling into the informational text message category and thus only requiring a prior consent of some sort. Rebecca observes that based on the plaintiff’s claim that CBS Radio never obtained prior express written consent, the plaintiff may plan to argue that “the CBS Radio sports-related information has a commercial purpose, e.g. the highlighting of programming airing on CBS” which could put the texts into the advertising text message category requiring express written consent. Based upon the texts reproduced in the complaint, however, my colleagues believe that the CBS Radio sports scores are informational messages.
What about the situation such as what may have happened in the CBS Radio lawsuit where a radio station is sending sports scores or other apparent informational texts that were presumably requested at some point to be sent but the telephone number is re-used on a burner phone or changed through subscriber churn?
Marty points out that telephone number reuse is a “huge issue” under the FCC’s rulings. The FCC allows for one “get out of jail free card” for a call to a reassigned number, and then the text sender is on the hook for any subsequent calls. Marty notes that it is an issue that is now on court review because there is no perfect way for a radio station or other text sender to protect itself. There are various services out there that claim varying degrees of accuracy in scrubbing lists for reassigned numbers but they are not perfect. Another imperfect option is to include a provision in whatever written consent is obtained asking text recipients to notify the radio station if the wireless service is cancelled or the mobile number changes. Rebecca notes that radio stations texting to cell phones have to “acknowledge and understand that texting campaigns carry this significant risk” of ever-changing telephone numbers.
Does a radio station’s insurance cover a TCPA lawsuit? Doug notes that TCPA liability coverage is may be excluded under general commercial liability insurance policies. It is his experience that even when an insurance company is asked, a TCPA coverage rider may be difficult to obtain given the private right of action for violations and the significant statutory damages per violation. Class action litigation defense can be expensive, and the costs of litigation will likely be related to the value of a claim: that is, the number of non-complying telephone numbers alleged times $500 to $1, 500 per text. So, before embarking on a texting strategy, review your insurance coverage. Further, no matter what, have someone TCPA knowledgeable review all facets of your texting campaign.
Some radio stations have established various text alerts such as weather and traffic alerts, school closings, pump patrol and such to send to listeners who sign up. The informational texts might also come with a sponsor message. Are these radio stations inherently open to a class action lawsuit no matter what safeguards they employ and consents they request, or is there a way for a radio station to safely run such a service for listeners?
This is the basic issue of texting under the TCPA – is there a way to do it without a substantial exposure to a class action lawsuit. Rebecca notes that pure weather alerts and school closings fall under the category of informational texts assuming that there is no further advertising element included but that these texts nonetheless require prior express consent. Even if advertising elements are included in the text, Marty notes that it is possible to meet the prior express written consent requirements through web based forms or texts. Most importantly, any radio station engaging in automatic texting needs to have procedures in place for obtaining, verifying and maintaining records of the required consents, and a process to scrub lists for reassigned numbers and cancelation requests. Even so, a radio station could still be subject to TCPA liability if it unknowingly sends more than a single text to a reassigned phone number.
Finally, how about something simple. If a radio station seeks requests or contest entries by texting, can the radio station automatically respond with one reply text message that also contains an advertising message in the signature line?
Noting that there is no prior express written consent here, Marty is unequivocal on this one. “No, you can only respond with information relevant to the purpose of the sender’s text – that’s it. There cannot be any additional advertising messages included in any automatic response.”
None of the above is legal advice, of course. Any radio texting promotion requires a myriad of elements and controls to be TCPA compliant. Automatically-sent texts, whether informational or advertising, carry with them under the TCPA a possible risk of a class-action lawsuit.
With that being said, hopefully the recent TCPA lawsuit filed against CBS Radio is not an indication that we lawyers are about to become really busy.