STOP TALKING: AirVoice Wireless Sued Over AirTalk Wireless Promotional Texts

Hi TCPAWorld!

Wireless service provider AirVoice Wireless is facing a class action TCPA suit for purportedly sending repeated text messages in the face of the receiver’s opt out.

The Complaint, brought by Plaintiff Dana Berkley, alleges that in December 2023, AirVoice began “bombarding” her with telemarketing text messages. These included a final notice to keep free AirTalk service and a notice of AirTalk Lifeline benefits being suspended. The messages were accompanied by links to keep the service running. Berkley had replied “stop” to both these messages in response to the opt-out instructions contained in them. She also claims that her number had been registered on the national do-not-call (“DNC”) registry since January 26, 2018.

Based on the allegation in the complaint, the Plaintiff seeks to certify these classes:

Just in case you’re not familiar, here’s a quick refresher for you: the DNC rules—found in 47 C.F.R. § 64.1200(c)—prohibit any person or entity from initiating any telephone solicitation to a residential telephone number on the national do-not-call registry. Such do not-call registrations must be honored indefinitely, or until the registration is cancelled. Further, the internal DNC rules—found in 47 CFR. 641200(d)— require companies making marketing calls (even those with express written consent) to maintain an internal DNC list. A text message “stop” request qualifies as an internal DNC event.

There is a good faith exception to this requirement. No person or entity will be held liable if it can demonstrate that the violation is the result of error, and that as part of its routine business practice, it meets certain standards, including establishing and implementing written procedures, training personnel, maintaining and recording an internal DNC list, and employing and accessing a version of the national DNC registry no more than 31 days old. Additionally, telemarketers are afforded a “reasonable time”, not exceeding 30 days, to heed DNC requests.

There may be another source of respite for the Defendant – IF the messages were contractually contemplated. Here’s how: the AirTalk Wireless Lifeline program offers free wireless services to eligible low-income subscribers, and the messages contained both informational and marketing content. Until now, such dual-purpose messages were considered telemarketing. However, in a very recent decision in Bradford v. Sovereign Pest Control, 2024 WL 3851229 (S.D. Tex. Aug. 16, 2024), the Court concluded that when a free annual property inspection was contractually required to determine whether to renew a pest control contract, messages sent to schedule the inspection were merely informational and not marketing, even after the contract had expired. (For more on this significant decision, be sure to check out the Czar’s latest blog.) AirVoice may be able to advance a similar argument based on the dual-purpose intent of its messages, but how persuasive this will be remains to be seen. We’ll keep you updated!

Read the full complaint here: Dana Berkley v. Air Voice Wireless LLC d/b/a