The Federal Communications Commission's new declaratory order will change the interpretation of some aspects of the Telephone Consumer Protection Act, but one thing remains the same—putative class actions seeking large damage awards will continue to be filed.
In the most recent example, Edmund Pietzak filed suit in California federal court, alleging that Microsoft "solicits mobile phone numbers from potential customers using deceptive posting on social media websites" and then automatically enrolls the numbers "in a text message advertising program that repeatedly transmits unsolicited advertisements for Microsoft products to mobile phones of potential customers."
According to the complaint, one advertisement appeared on Facebook suggesting that users text the word "Surprise" to a short code in order "to find out how to win great prizes." Other offers instructed social media users on Instagram, Twitter, and YouTube to text "Happy" for "a special surprise offer" or "HALO" for "a chance to win a limited edition Xbox One console."
Instead of great prizes or Xboxes, those who texted began receiving messages from Microsoft at a rate of up to 10 texts per month, Pietzak said. Nowhere did Microsoft disclose that consumers would be enrolled in the automatic marketing text message system, the complaint alleged.
The plaintiff, an account manager at a Los Angeles literary and talent agency, claimed he suffered "actual harm and embarrassment in his profession" due to the unwanted ringing of his mobile phone. Characterizing the texts as a "relentless effort to advertise [Microsoft's] products," the complaint sought the maximum statutory damages of $1,500 per message as well as injunctive relief to halt the allegedly unlawful text messages.
To read the complaint in Pietzak v. Microsoft Corporation, click here.
Why it Matters: In addition to Microsoft, the complaint also named marketing company HelloWorld, the entity that according to the complaint orchestrated the text message campaign, as a defendant. Both defendants should be found liable, Pietzak told the court, referencing the FCC's recent order. "As its very name makes clear, the Telephone Consumer Protection Act is a broad 'consumer protection' statute that addresses the telemarketing practices not just of bad actors attempting to perpetrate frauds, but also of 'legitimate businesses' employing calling practices that consumers find objectionable," the FCC said. The mere filing of the case means nothing at this point, but does stand as a warning for advertisers to vet all campaigns proposed by agencies that involve the collection and use of consumer mobile phone numbers.