TCPA: Continued Focus on Unsolicited Text Messages
On October 5, 2012, in the case of Pimental v. Google Inc., Google, Inc. and Slide, Inc. asked a federal judge in the United States District Court for the Northern District of California to approve a $6 million settlement with a class of consumers who alleged the companies’ group texting service violated the Telephone Consumer Protection Act (TCPA) by sending text messages without their consent.
According to the Complaint, the texting service was supposed to be used to create groups of friends or family who can send messages to everyone in the group at one time. The plaintiffs, however, alleged that they received unsolicited text messages from groups created by people that they did not know. Some of the messages were directly from Google and Slide, advertising this very smartphone application. Plaintiffs alleged that they tried to opt-out of the text messages but to no avail.
Prior to the settlement, Google and Slide sought to dismiss the case by arguing that the First Amendment shielded text messages from regulation, but the court denied that motion.
The proposed $6 million settlement fund would pay for all approved claims under the agreement. Two million dollars is to be paid to class counsel.
Takeaway
The prevalence of TCPA claims continues to rise in a world where many contacts made by businesses with the public are through pre-recorded messages, auto-dialed calls, or text messages. The issues of a consumer’s consent to receive calls or texts with an auto-dialer as well as the sheer volume of calls always are critical concerns in the TCPA context.
This settlement also highlights the need for increased attention to TCPA compliance. Given the still unsettled nature of judicial interpretations in the area, businesses should ensure that they have a TCPA-compliance plan that complies with current regulations but allows for future flexibility. This is critical when considering the evolving definition of “prior express consent,” especially considering the FCC’s recent proposed regulation that “prior express consent” will need to be in writing for telemarketing calls.
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