The Telephone Consumer Protection Act (“TCPA”) was designed by Congress to stop unsolicited telephone calls and faxes to consumers who did not want them. Akin to a trespassing statute, it allowed consumers to sue when they received unwanted contact via fax or telephone (and later text).
It was not intended to allow a “trespass” case when a host invited guests over to dinner, i.e. Congress did not intend to allow consumers and plaintiffs’ attorneys financial windfalls for invited communications.
I see more and more TCPA class actions brought against entities which have attempted to comply with the law, yet are still sued by plaintiffs alleging “technical” violations of the TCPA or “traps” when communications are requested, then alleged to be illegal and the cause of millions of dollars of damages.
Courts are beginning to reject these claims.
In Viggiano v. Kohl’s Dep’t Stores, Inc., an individual Amy Viggiano opted-in to a text program from Kohl’s Department Stores, Inc. The terms and conditions to Kohl’s mobile phone text program included instructions regarding how to opt-out stating the consumer could text any of the following commands to a certain number:
Instead of following these instructions, Viggiano sent the following texts to that number,
· “I’ve changed my mind and don’t want to receive these anymore.”
· “Please do not send any further messages.” and
· “I don’t want these messages anymore. This is your last warning!”
In response, Kohl’s automated program replied to each of these “Sorry we don’t understand the request! Text SAVE to join mobile alerts . . . Reply HELP for help, STOP to cancel.”
Instead of texting “STOP” in response to any of these messages, Viggiano sued.
The court held that Viggiano could not plausibly assert she had a reasonable expectation her request was effective “indeed, the only reasonable expectation Plaintiff could have had is the opposite—her request for revocation would not be successful.”
The court therefore dismissed the case.
Thus, plaintiff was not allowed to use “any” means of revocation when it was clear she knew she was dealing with an automated response and the correct means of revocation were clearly expressed as well as ineffectiveness of her duplicitous requests.
The same situation has occurred with regard to “curfew” violations where consumers have made limitations on calls, clearly ineffective with regard to automated means of gathering express consent. An example would be “yes, please call me, but only between the hours of 11:15 and 11:30 a.m. PST.” A suit based on a call at 11:31 would clearly be a “trap” designed to exploit complying businesses.
This case is probably the paradigm of a “trap”, but I have seen many examples of consumers opting-in to communications, then suing for “technical” violations in those communications, or the means of gathering express consent. This case and related decisions should help legitimate businesses in defense of those actions.
Finally, it will be interesting to see whether defendants move for sanctions or attorneys’ fees against Viggiano and her attorneys—such claims may be successful.