On September 11, 2018, Chad Fernandez (“Plaintiff”) “hit” Tampa Bay Rays Baseball Ltd. (“Tampa Bay Rays”) with a putative Telephone Consumer Protection Act (“TCPA”) class action lawsuit in Florida federal court. In his TCPA lawsuit, Plaintiff alleges that the Tampa Bay Rays sent four unsolicited text messages to his cellular telephone using an automatic telephone dialing system (“ATDS”) without obtaining his prior express written consent as required by TCPA regulations. The case was filed in the United States District Court for the Middle District of Florida, Tampa Division and is captioned Chad Fernandez v. Tampa Bay Rays Baseball Ltd., Case No. 8:18-cv-02251-MSS-SPF.
Plaintiff’s TCPA Lawsuit Claims
Among other things, the TCPA prohibits the placement of any commercial telephone call, including the sending of any text message, using an ATDS, to any telephone number assigned to a cellular telephone service without the recipient’s prior express written consent. 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). As we have previously blogged, this definition is currently being revisited by the Federal Communications Commission following the D.C. Circuit’s ruling in ACA International v. FCC.
In his TCPA lawsuit complaint, Plaintiff alleges that the Tampa Bay Rays repeatedly texted him from the short code 420-86 about upcoming games without his prior express written consent. The string of texts included messages such as, “Opening Day is one week away!” and “Today only: $20-Press Level tickets for Blue Jays vs. Rays.” Plaintiff claimed that receiving these allegedly unlawful text messages invaded his privacy and “wasted his time by requiring him to delete the messages.” Plaintiff alleges that, upon information and belief, the Tampa Bay Rays sent similar text messages “en masse” to the cellular telephone numbers of thousands of other consumers. Plaintiff seeks statutory damages on behalf of himself and the putative class (i.e., all others similarly situated), as well as a mandatory injunction ordering the Tampa Bay Rays to stop sending text messages in violation of the TCPA.
Notably, all of the text messages received by Plaintiff including the footer: “Text STOP to cancel.” As such, it is curious (although not surprising) as to why Plaintiff failed to explain why he did not opt-out from receiving text messages from the Tampa Bay Rays by texting STOP after receiving the first, second, or third such text message.
Avoiding TCPA Lawsuits
Given the rapidly-evolving telemarketing law landscape, marketers are well-advised to retain seasoned counsel to help assist them in navigating the nuances of state and federal telemarketing regulatory requirements.