When we help clients design TCPA-compliant SMS marketing campaigns, one of the key issues we focus on is syncing up the content of the message with the level of consent we’ve achieved at any stage in the consumer experience. As all good TCPA students know, telemarketing or advertising messages (or calls) require prior express written consent under the FCC’s regulations. That requires a signed agreement with the consumer that includes the various elements of the FCC’s definition of that term (think “consent is not a condition of purchase”). But if you’re just going to send a non-marketing message (colloquially referred to as an “informational” message in TCPA circles), you just need “prior express consent,” which is satisfied when the consumer voluntarily gives you their phone number. Sounds simple enough. But the line between “telemarketing” and “non-telemarketing” is not always clear, and plaintiffs’ lawyers predictably find marketing content in any message a—gasp—for-profit entity sends.
The Southern District of New York recently gave useful guidance in drawing the line between “telemarketing” and “non-telemarketing” SMS in Rotberg v. Jos. A. Bank, a putative class action against the retailer and its SMS platform provider, Vibes Media. The plaintiff admitted that he’d voluntarily given Jos. A. Bank his phone number before receiving the two messages at issue, but claims he didn’t give his prior express written consent to receive what he characterized as telemarketing messages. Unhelpfully, his complaint did not quote the two messages in full. But with what he did include in his complaint, the Court was able to conclude that neither of the messages were telemarketing messages as a matter of law.
Significantly, the court rejected Rotberg’s attempt to simply label the message as “telemarketing” and thus survive a motion to dismiss (which moves a case into the lengthy, distracting, and often-expensive discovery process). As the court held, “Rotberg’s tautological description of the ‘initial marketing text message’ as a text that contained marketing material is nothing more than a ‘formulaic recitation of the elements of [his] cause of action,” which falls short of meeting the Supreme Court’s pleading standards. Thus, TCPA defendants should be mindful of not allowing a plaintiff to stand on conclusory allegations that a given TCPA element is satisfied, including the nature of the message or call at issue.
Turning to the first message, Rotberg alleged that it included a bitly link that took him to one of the Defendants’ websites. That site “consists of the terms and conditions required for participation in Defendants’ automated mobile marketing program.” The court rejected the argument that that was a marketing message. To the contrary, “a caller seeking out a consumer’s express written consent to send subsequent telemarketing or advertising texts is not as a matter of law already engaged in telemarketing.” The court approvingly cited other courts that have held that SMS sent “solely for the purpose of allowing the recipient to complete a registration process … is not telemarketing” under the TCPA. Having admitted that he freely gave Jos. A. Bank his mobile number, the court dismissed his complaint relating to the first, informational message.
The second message at issue in his complaint was an opt-out message he received after texting “STOP.” As I mentioned above, plaintiffs’ attorneys see marketing content in the strangest of places, and so here too. This opt-out message contained a link to Vibes Media’s consumer help webpage. Plaintiff argued that the various and sundry links at the bottom of that consumer-help page to various other parts of Vibes’ website (including where it advertises its services to the brands that use its platform) converted that SMS into a telemarketing message. Too cute. The court had “no trouble concluding” that the message fell into the permissible scope of opt-out messages allowed by the FCC when we receive a STOP request. The court reasoned that the web “form by itself is clearly intended to do nothing more than provide consumers with a means of contacting Vibes for help, and thus is akin to providing ‘instructions as to how a consumer can opt back in’, which ‘falls squarely with consumer consent.’” (The court was quoting the FCC’s 2012 SoundBite decision, which established the right to send a single, confirmatory opt-out message even after a consumer revokes consent—provided that message doesn’t include any further marketing content, of course.)
In short, the three key take-aways from Rotberg are: (a) if you have prior express consent, you can use automated technology to complete an agreement to receive the consumer’s prior express written consent; (b) an opt-out message is not converted into a telemarketing message simply because the consumer could wander into marketing content on associated pages; and, for the lawyers; (c) don’t take a conclusory ‘telemarketing’ allegation at face value. Iqbal/Twombly that outta here!
By Joe Bowser
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