Since the updates to the TCPA (Telephone Consumer Protection Act) rules in 2013, there has been an increase in consumer complaints resulting in litigation. Despite the prevalence of new cases, there are still a variety of interpretations of the law within the court system and an ongoing debate regarding what qualifies as injurious to a plaintiff. In the July 28th ruling on Franklin v. DePaul University, Judge John Z. Lee denied DePaul’s motion to dismiss the case in which the university claimed that the text messages in question are insufficient to warrant legal repercussions.
To give this motion and its denial some context, Ricky B. Franklin asserts that he began receiving promotional text messages from DePaul University in late 2015. According to his filing, he had not provided his cell phone number or any other form of personal contact information prior to being solicited. He further claims that he immediately attempted to opt out, but that DePaul’s SMS automation spit back an error and, consequently, he subsequently received at least 17 unwanted text messages.
As with any legislation, interpretation in court ultimately sets the standards that must be abided by in order to avoid litigation. Last year, the Supreme Court ruled in Spokeo v. Robins that the plaintiff must be injured in a “personal and individual way” that must be “concrete,” which in legal lingo means “real” and “not abstract.”
The nature of DePaul’s challenge to Franklin’s allegations were based on the Spokeo ruling. As David O. Klein of Klein Moynihan Turco LLP explains in LegalNewsWire though, despite the fact that some courts have dismissed TCPA claims on the basis of the Spokeo case, “other courts, like the court that denied DePaul’s motion to dismiss, have been inclined to find that receipt of even one unsolicited call or text message to one’s cell phone placed through use of an autodialer is precisely the manner of injury that Congress intended to remedy through passage of the TCPA and, thus, sufficient to survive a Spokeo-based challenge.”
In short, even a Supreme Court ruling has failed to definitively establish what it takes to overcome a TCPA lawsuit. Rolling the dice on how a particular court or judge might choose to interpret the Spokeo ruling is a risky gamble. The best strategy is to not only remain fully compliant and aware of any legal developments, but also to take additional preventative measures, such as leveraging a third-party certification service like TrustedForm that is designed to document and store proof of consent.
TCPA litigation has risen 940% in the past 5 years. Settlements resulting from even a single unsolicited text message or phone call can cost businesses millions of dollars. Check out our TCPA settlements page to view recent examples.