Twitter, the TCPA, and Ridiculous Lawsuits
I have blogged several times about the importance of the TCPA in SMS marketing. And while I fully support the consumer protection that the TCPA offers, there is always someone, or in this case two someones, who try to take advantage of the system. On April 28th, two California residents filed a class action lawsuit against Twitter, alleging that the Social Network violated the TCPA when it sent them a confirmation SMS in response to a SMS request the men made to stop the SMS subscription. Confused yet?
Mobile Marketing Watch sums it up nicely:
Put simply, the two are suing based on the claim that Twitter was wrong to send them a confirmation SMS after they themselves sent the “STOP” command to express the fact they no longer wished to receive messages from Twitter. The men claim that after they sent the initial “STOP” command that Twitter should have ceased communication altogether, and that it was illegal to receive the simple confirmatory message making sure they truly wanted to opt-out. This is something nearly all SMS programs do.
The two men, Drew Moss and Sahar Maleksaeedi, say an “automatic telephone dialing system” was employed to deliver the confirmatory message, and that they incurred a charge for incoming calls as a result. This is illegal, the two men claim, because the message in question was not sent for emergency purposes and without prior consent given.
Right.
Just to be clear, in order to receive the messages to begin with, a user with a Twitter account must first log into Twitter, register their mobile number with Twitter, and send a validation SMS to Twitter with the word GO in it.
I might not be a lawyer, but that sounds like prior consent to me.
The TCPA plays an important role in consumer protection. Frivolous lawsuits like this cheapen and damage it.
Comments
Maybe you should list which laws should be enforced and which should not? This is Twitter. They have plenty of ways to confirm that they are going to stop. Why did they have to break the law?
Hi Dave,
Thanks for the comment, but I think we have a disconnect here.
In my opinion, and I suspect that of whatever judicial panel hears this case, Twitter DIDN’T break the law.
I clarify my position more in my next blog - http://www.sundog.net/sunblog/posts/more-regarding-twitter-and-the-tcpa/
Actually, consent can be revoked, per numerous court rulings. Once prior express consent is revoked, any further texts can and are illegal.
While this class action may be pushing it a bit, I feel it falls well within the meaning and spirit of the TCPA.
James, that is a very fair point and thank you for sharing.
Precedence does state that consent absolutely can revoked, whether it be via SMS, orally, or writing. However, the TCPA unfortunately does not address how revocation of consent is to be processed. In fact, if looking to the CAN-SPAM act for guidance, companies have 10 days to comply with any revocation request.
In addition, the SMS conversation in this case was initiated by the plaintiffs. They sent the STOP request via SMS. According to the lawsuit itself, “In RESPONSE to receiving this revocation of consent, Defendant then IMMEDIATELY sent another, unsolicited, confirmatory text message to Plaintiffs’ cellular telephones” (Emphasis mine). It can be argued (and I am sure it will be) that Twitter’s SMS response was in fact solicited by the STOP request itself.
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