The regulations set forth by the TCPA prohibit marketers from using automation to call those who don’t consent or don’t have an existing business relationship with the company. Though, confusion over where the law stands in relation to SMS marketing has lead to some well known companies being taken to court over sending SMS spam. Bellow are two of the most prominent cases. By reviewing the cases you can learn more about how the law is meant to be interpreted and why it’s better for your brand to use these interpretations anyway.
1. Simon & Schuster- Where it all began
Simon & Schuster sent out text messages to some non-expectant recipients, informing them of the upcoming release of a new Stephan King novel. One of the recipients decided to sue them on grounds that she received an unsolicited, automated marketing message from a company with which she had no outstanding business relationship. The courts ruled in favor of the plaintiff, Laci Satterfield, on grounds that Simon & Schuster didn’t follow the TCPA laws. This set precedent for applying all the rules of unsolicited calls under the TCPA to text messages as well.
But even under the confines of the TCPA, Simon & Schuster felt they had precedent to send the text messages. Prior to receiving the unsolicited text message, Satterfield had downloaded a free ringtone from Nextones.com. Before proceeding to download, she was prompted to add her number to a list for receiving messages from Nextone and its affiliates or risk not receiving free content from Nextone. She added her number to the list, effectively opting-in. The court struck this down on a technicality, however, noting that Simon & Schuster, while affiliated with Nextone through their marketing agency, was not an ‘affiliate’ in the legal sense of the word. Simon & Schuster then had to pay $175 to all those who participated in the class action lawsuit.
The most important lesson to take away from this case it that just because something is legal, doesn’t mean you should do it. It would appear that if the wording of Nextone’s consent statement were broader, Simon & Schuster would have been in the clear, at least legally. But what use is it being in the clear if your brand is associate with legal spam? Fact of the matter is, there was no clear communication during the opt-in process as to what a person should expect when providing a number. The broader the wording and purpose of the opt-in, the greater the chance that messages sent to the opt-ins will be perceived as spam by some of the recipients.
When you create an opt-in, make sure people know exactly what it is they are signing up for. As we can see in the case of Simon & Schuster spam lawsuit, confusion over what it is a customer is opting into can lead to dire consequences. Additionally, if you have affiliates collecting contacts for you, you must have very strict guidelines that they must follow in order to maintain a good brand image.
2. Heartland and Jiffy Lube- The rise of written consent
A class action lawsuit was filed against Heartland Automotive Services, the largest Jiffy Lube franchisee, for violating the TCPA by sending unsolicited text messages. But Heartland argued that its actions fell within the confines of the TCPA. Heartland had collected most of the numbers from invoices of their previous customers. Since the TCPA allows calling numbers of people you have an established business relationship with, Heartland felt that mining their invoices for numbers was a valid option. They also argued (rather weakly) that customers providing numbers on the invoices could be considered consenting.
As this trial progressed (and maybe in part as a result of it) an amended version of the TCPA was released. This changed the previous requirement for sending unsolicited messages from a need of an outstanding business relationship to a requirement of explicit written consent. Now there could no longer be any confusion as to what the legislators’ intents were. The law was set out to protect consumers from any annoying marketing messages and the possibility of incurring unwanted text costs.
In the Heartland case we see that even prior customers of Jiffy Lube were upset at receiving the text messages. This shows that it’s not only completely unprecedented text messages that are unappreciated (as seen in the case of Simon & Schuster). Even when there is some precedent to sending a text message (i.e. being a customer), the customer may not appreciate it since they’ve never consented to have their number used in a marketing campaign. Whenever you create an SMS or MMS campaign take the perspective of the customer. Take a look at what exactly it was that the phone number list you are about to add to the campaign consented to and determine if they would appreciate receiving the message.