So hello again TCPAWorld! I’m back!
You may remember me, your beloved Queenie—Puja Amin.
I worked for the Czar long ago in a galaxy far, far away (part of the multiverse known as TCPAland) before taking on the broad-ranging role as corporate counsel for loanDepot—one of the greatest mortgage lending brands in the nation. And after helping that great organization through their marvelous IPO I ascended to the role of General Counsel at Digital Thrive where I presently pass contented days steering one of the most COMPLIANT lead generation companies on the planet through the pitfalls of the U.S. Telecom landscape.
Tricky stuff. As you know.
So the good folks at Digital Thrive are encouraging me to spread the compliance gospel to other industry participants in the hopes that greater awareness of compliance-related issues will lead to greater compliance overall. This is important for DT, of course, because—quite frankly—it is at a competitive disadvantage when it follows the law and other companies don’t. So I’m writing to all of you to encourage YOU to do the right thing too. As well as to personally poke the Czar into starting R.E.A.C.H.—its about time dude, and you know you have Digital Thrive’s FULL support (and mine.)
Preliminaries out of the way, the Czar has said I can use “his” website—I actually helped found TCPAWorld.com along with Frank Kearny in a barbecue joint in Memphis, but that’s another story— to promote my new digital newsletter Let’s DIG Into Compliance!
While the Czar is constantly (tirelessly (relentlessly)) blogging to help folks be aware of litigation and compliance and regulatory risk, he is an outsider in this world. I mean, literally, he is OUTSIDE counsel. I, on the other hand, have served as in house counsel (and chief marketing counsel) for one of the largest lead buyers in the nation and now for one of the best-reputed lead sellers. So I bring a slightly (totally) different outlook. And with that perspective in mind, I invite you to our newsletter: https://www.digthrive.com/post/let-s-dig-into-compliance
But here’s a little taste of the sort of content you can expect from my little publication (which should be viewed as supplemental to TCPAWorld, and certainly not a replacement):
So I was perusing the daily TCPA filings (old habit) when I came across this new complaint. Freedom Boat Club Complaint
If you take a look at it you’ll see some nifty pictures of text messages that allegedly violated state and federal law.
The crux of the claim is that the texts were sent without express written consent and that an “autodialer”—as that term is extremely broadly used in the Florida statute—was used to send the messages. That’s all fine but also not very captivating.
But here’s what caught my attention.
The Complaint also alleges the Defendant violated the law by: i) failing to identify themselves in the text message; and ii) failing to comply with CTIA guidelines.
Now the “content claims” related to the text needing to have included the name of the sender is not, strictly speaking, new. The Czar discussed this exact issue as part of his “Ten Commandments of Telecom Law” he delivered at the DNC.com’s big TCPA Summit in December, 2021—and it was awesome. But this complaint really drives home the importance of identifying the sender of every marketing text message to avoid a potential CFR violation.
But the second piece—failure to comply with CTIA guidelines—is a really unusual thing to see in a TCPA class action. This is because the CTIA guidelines—although important to keep in mind from a deliverability standpoint—are not the law. Failing to comply with the CTIA might result in your messages not getting through (pretty important) but it can’t/shouldn’t result in your getting sued.
Except, maybe it can. Look at paragraphs 20 and 21 of this complaint:
As demonstrated by the text message screenshots above, Defendant did not provide Plaintiff and the Class members with instructions on how to opt-out of future text messages by, for example, advising them that they could text “Stop” to get the messages to stop, which is a standard requirement outlined in the Principles and Best Practices manual published by CTIA, the trade association that represents every major wireless carrier in the country. See 190719-CTIAMessaging-Principles-and-Best-Practices-FINAL.pdf at 15 (“Message Senders should state in the message how and what words effect an opt-out. Standardized ‘STOP’ wording should be used for Case 0:22-cv-60919-XXXX Document 1 Entered on FLSD Docket 05/14/2022 Page 6 of 19 7 opt-out instructions, however opt-out requests with normal language (i.e., stop, end, unsubscribe, cancel, quit, ‘please opt me out’) should also be read and acted upon by a Message Sender except where a specific word can result in unintentional opt-out. The validity of a Consumer opt-out should not be impacted by any de minimis variances in the Consumer opt-out response, such as capitalization, punctuation, or any letter-case sensitivities.”).
Defendant’s failure to provide opt-out instructions to Plaintiffs and the Class members is indicative of Defendant’s failure to 1) maintain written policies and procedures regarding its text messaging marketing; (2) provide training to its personnel engaged in telemarketing; and (3) maintain a standalone do-not-call list.
See what the Plaintiff’s counsel is doing?
By alleging a failure to adhere to the CTIA guidelines, the Plaintiff is asking the court to infer that the Defendant was not otherwise complying with the TCPA’s internal DNC rules. I.e. since the caller failed to do something required by the CTIA they must also be failing to do something required by federal law.
When I read this my eyes grew quite large. Obviously the Plaintiff’s bar is attempting to graft CTIA rules into the CFR through clever pleading—and this is exactly the sort of thing that the Defense lawyers (both in house and outside counsel) might miss and trip over.
But now I’m here to help you avoid little traps like this.
Check out Let’s Dig In! now. Like the Czar I won’t spam you or bother you. Just free, good, and useful content.
One last plug—I’ll be speaking at Medicarians on June 7, 2022 at MGM Grand in Las Vegas, Nevada. Be sure to stop by and say hello if you’re attending.
Until next time.