Last month, the U.S. Court of Appeals for the District of Columbia Circuit clarified parts of the Federal Communications Commission’s 2015 omnibus order, which was a ruling that clarified aspects of the Telephone Consumer Protection Act of 1991, known as TCPA. The new clarifications may make text messaging a more appealing marketing medium for retailers.
In general, the TCPA is meant to protect consumers against unwanted, automated telemarketing calls and text messages. Over the years and after the 2015 omnibus order, however, consumers have sued retailers and businesses citing TCPA violations. Businesses and retailers argue the language in the act is unclear and many of the lawsuits are frivolous, which is why the credit and collection industry group ACA International petitioned the Court of Appeals.
Mobile marketing vendor Vibes, Rite Aid Hdqtrs. Corp. and the National Retail Federation were among the businesses that submitted briefs in support of the ACA.
The March 2018 ruling on the ACA International v. Federal Communications Commission case clarifies some of the 2015 omnibus order in regards to how consumers can opt out of messages and provides a framework for the FCC to reconsider how it defines “autodialers” and “called party,” if the FCC chooses to reconsider the issue.
The 2015 clarifications, “created even more confusion and over-reached in areas that significantly impacted mobile marketing innovation,” says Vibes in a release about the 2018 ruling.
The new ruling clarified language on how consumers opt out of telecommunication marketing. A consumer may sign up to receive marketing text messages from a retailer and then later wish to opt out. As it currently stands, “a called party may revoke consent at any time and through any reasonable means that clearly expresses a desire not to receive further messages.” The court, however, does not define “reasonable,” and its interpretation has led to lawsuits.
According to the order, retailers should provide a “reasonable means” for a consumer to opt out of the program. Some consumers, however, have chosen not to follow these methods and try to opt out via their own methods, such as by verbally telling a store cashier to have the retailer stop sending marketing text messages or sending a text such as, “I no longer wish to receive these messages so please cut them out.” Consumers in such a scenario might not be opted out of the programs, leading retailers to still send messages and consumers to file lawsuits.
For example, in the 2017 Viggiano v. Kohl’s Department Stores Inc. case, Kohl’s allowed consumers to opt out of programs by texting any of the following words: stop, cancel, quit, unsubscribe or end. However, Viggiano texted a sentence to opt out of the program, which the computer did not understand and left her enrolled in the text-messaging program. She then sued Kohl’s, No. 18 in the Internet Retailer 2017 Top 1000. While the case was eventually dismissed, this is the not the only time consumers have filed lawsuits from not following the opt-out methods businesses provide.
This most recent ruling suggests that if a retailer offers a reasonable opt-out method, and the consumer sidesteps the method, then the consumer’s method could be seen as unreasonable.
“This is a big win for…
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