The TCPA - Is Social Media Next?

By Gabriel Ruzin

In the latest warning to the ever-expanding marketing industry, the 5th Circuit Court of Appeals recently determined that unsolicited and unwanted ‘robotexts’ sent from a retailer to a customer is a violation of the Telephone Consumer Protection Act (TCPA) of 1991. The ruling reverses the lower 11th Circuit’s judgment that a “single unwelcome text message will not always involve an intrusion into the privacy of the home in the same way that a voice call to a residential line necessarily does.” In Cranor v. 5 Star Nutrition, the plaintiff began receiving text advertisements after providing the company with his phone number during a visit to their retail location. Requesting that the texts cease did nothing to stem the flow of unsolicited messages and the plaintiff threatened legal action. After reaching a settlement with 5 Star Nutrition, the plaintiff again received an unsolicited text from the company, at which time he proceeded with litigation.

As part of its decision, the 5th Circuit opined that the relatively new technology of text messaging - which of course did not exist at the time of TCPA’s passing - does indeed fall under the definition of the very ‘intrusive nuisances’ that the Act was created to prevent. Although texting was not yet prevalent in 1991, TCPA does mention “cellular telephone service” as falling within its scope and posits that a “nuisance” that constitutes an “invasion of privacy” is sufficient to prove violation of the Act.

What does that mean when it comes to marketers’ appropriate use of social media in the financial industry? Put simply, it means that the practice is as tenuous and fraught with danger as ever. In June of 2019, the 9th Circuit Court handed Facebook a loss in federal court when a non-user of the social media platform claimed that the company repeatedly sent him automated messages warning him that someone was attempting to login to his account (which did not exist). Despite reaching out to Facebook via text and email, the texts persisted for months. In Duguid v. Facebook, the plaintiff alleged that the company could only make such a mistake via the use of an automated telephone dialing system (ATDS), which is expressly banned by the TCPA. The Court agreed and found in favor of the plaintiff.

As the TCPA is emboldened by recent court rulings, marketers must understand that the list of the Act’s violations is steadily growing and companies leave themselves open to legal action if caught in the act. Unsolicited texts, texts requesting payment, ‘scrambled’ messages that require decoding, or messages to consumers on the TCPA Do Not Call Registry are specifically prohibited and carry heavy penalties. Although texting is a quick, and often effective, option for servicers to attract customer interest and attention, misuse is an increasingly dangerous liability in today’s financial landscape.