Elaine Bonin recently filed a class action suit in federal court in Wisconsin alleging that CBS Radio violated the Telephone Consumer Privacy Act by sending her text messages with game scores. She claims she and a class of similarly situated plaintiffs never consented to the messages. Give that the TCPA provides for statutory damages of up to $1500 per violation, and given her contention that the entire class is entitled to that relief, the score here could be, to borrow a phrase from a presidential candidate “huge.”
According to the complaint, the TCPA "generally prohibits autodialed calls to wireless phones," but "provides an exception for autodialed and prerecorded message calls...made with the prior express consent of the called party." The complaint further notes that “on February 15, 2012, the FCC released a Declaratory Ruling wherein it clarified that a party must obtain prior express written consent from the recipient prior to making automated telemarketing calls to the recipient’s cellular telephone.”
Ms. Bonin purchased a prepaid wireless phone earlier this year. The prepaid phone came with a set allotment of minutes for calls and text messages. Shortly after she got the phone, she received a test message from a number belonging to Chicago radio station 670 “The Score.” That message contained the score of the Bears Lions football game. Apparently the station sent her several additional messages. In her complaint, Ms. Bonin states in no uncertain terms: “[a]t no time did Bonin provide her prior express written consent, or any other form of consent, to CBS or 670 The Score, or to any of its affiliates, agents or subsidiaries, to receive any text messages, prerecorded, or automated calls/texts to her TracFone cellular telephone.”
In her complaint, Ms. Bonin notes that each text message use up .03 minutes of her allotment. That may sound miniscule, but it could be a critical piece of the case. In any civil action, and in any class action, the court has to consider the question of “standing.” And a plaintiff must establish that he or she suffered some actual “injury in fact” to have “standing” to bring a lawsuit. A plaintiff who can only establish statutory damages may not have standing. Just because the TCPA provides for a statutory remedy, that does not mean the plaintiff suffered any injury. That is what makes those .03 minutes so important.
The complaint is saying that The Score effectively took from Ms. Bonin phone time she paid for. The .03 used by each unauthorized text is .03 minutes she can’t use. Perhaps in the scheme of things, not the most onerous injury, but an injury nonetheless. And those .03 minutes may turn out to be a big headache for CBS.