While there is nothing remarkable about a class action complaint alleging violations of the TCPA following a text messaging campaign, this story in Law360 caught my eye because of the typicality of its allegations. And it provided me with a good excuse to remind you, dear readers, that text-based marketing requires clear affirmative consent from the would-be recipients of the text messages, in writing, prior to sending that first message.

Here, in a complaint filed in Florida district court (plaintiff’s state of residence), plaintiff alleges that defendant Town Sports International captured his contact information during a sign-up process for a free class at the Boston Sports Club (one of the Town Sports chain of fitness clubs) but that the club did not get his “prior express consent,” in writing, to send him subsequent marketing text messages by auto-dialer, as required by the Telephone Consumer Protection Act of 1991. Plaintiff alleges that he received at least three text messages from the club with membership deals. Plaintiff also claims that the club failed to honor his registration on the national do-not-call list. The club had used a vendor to send the messages but, plaintiff alleges, the club itself is vicariously liable for the vendor’s violations.

While TCPA cases often can seem to be based on the most technical of violations, marketers are wise to remember the basics: scrub your lists against the do-not-call registry and be sure to use a robust process for obtaining real affirmative consent from would-be recipients when embarking on a mobile marketing campaign. (Defendant here may have in fact done both but since the case is just at the complaint stage we don't know.) Consent can be obtained in various ways, including, most commonly, via a web-based sign-up or by text in response to a clear non-telephonic call to action that contains the legally-mandated disclosures. Not employing the appropriate methods to obtain the necessary consent is risky: each violation of the TCPA (i.e., each call that violates the TCPA) risks statutory damages of $500, and up to $1,500 per violation if proven to be willful.

{ Despite Defendants’ clear intention for doing so, Plaintiff was in no way given any reason to believe, nor did Plaintiff contemplate, that by completing the online free trial form he would become the victim of unsolicited text message spam. He certainly did not consent to it.

https://dlbjbjzgnk95t.cloudfront.net/1041000/1041300/https-ecf-flsd-uscourts-gov-doc1-051119261914.pdf