The FCC Shouldn’t Enable More TCPA Lawsuits

The Los Angeles Lakers offered its fans a fun opportunity: text-message the team, and you might get to place a personalized message on the Jumbotron at the Staples Center. The Lakers acknowledged receipt of each text with a reply making clear that not every message would appear on the Jumbotron. An appropriate response? Not according to one attorney, who filed a class-action lawsuit claiming that every automated text response was a violation of the Telephone Consumer Protection Act of 1991, or TCPA.

This is not an uncommon story; the TCPA has become a fertile ground for lawsuit abuse. While only 14 TCPA cases were filed in 2008, lawyers filed 1,908 such suits during just the first nine months of 2014. And unfortunately, the Federal Communications Commission is set to give the trial bar another boost later this week.

Congress enacted the TCPA in order to crack down on intrusive telemarketers and over-the-phone scam artists. The TCPA prohibits these businesses from initiating phone calls for commercial purposes without the prior consent of the called party. Each violation comes with a $500 penalty. But trial lawyers have twisted the law’s words to target useful communications between legitimate businesses and their customers. And thanks to the $500 penalty, the TCPA has become their ATM.

Examples abound. Consider TaxiMagic, a precursor to Uber. TaxiMagic faced a class-action lawsuit because it sent a confirmatory text message to a customer who called for a cab — one that indicated the cab’s number and when it was dispatched to the customer’s location.

Or take the case of Rubio’s, a West Coast restaurateur. Rubio’s sends its quality-assurance team text messages about food safety issues, such as possible foodborne illnesses, to better ensure the health and safety of Rubio’s customers. When one Rubio’s employee lost his phone, his wireless carrier reassigned his number to someone else. Unaware of the reassignment, Rubio’s kept sending texts to what it thought was that employee’s number. And the new subscriber never asked Rubio’s to stop texting him — at least not until he sued Rubio’s in court for nearly half a million dollars.

Some lawyers go to ridiculous lengths to generate new TCPA business. Some have asked family members, friends, and significant others to download calling, voicemail, and texting apps in order to sue the companies behind each app. Others have bought cheap, prepaid wireless phones so they can sue any business that calls them by accident. One man in California even hired staff to log every wrong-number call he received, issue demand letters to purported violators, and negotiate settlements. Only after he was the lead plaintiff in over 600 lawsuits did the courts finally agree that he was a “vexatious litigant.”

The common thread connecting all of these cases is that the defendants were not illegal telemarketers. They did not violate the popular Do-Not-Call registry. And they were not the fraudsters that state attorneys general and the Federal Trade Commission have (rightfully) targeted for using modern technology to evade the law and peddle fake services. No, they were all legitimate businesses trying to communicate with their customers.