SMS Marketing Best Practices

TCPA Prior Express Consent Motion to Dismiss – DENIED

Bebe Store

Did you know that in the Telephone Consumer Protection Act (TCPA), you don’t need written consent to text message someone something that is informational or administrative? It’s true. If you’re a retailer though, it’s most likely that your text messages are not going to be considered informational or administrative, meaning that you do need written consent from your customers before you text message them.

That being said, Bebe Stores tried to make this argument in a recently filed motion to dismiss a TCPA text message marketing lawsuit against them. The TCPA lawsuit is No. 14-cv-00267-YGR – MELITA MEYER v. BEBE STORES, INC., where the plaintiff (the customer) claims they walked into a Bebe clothing store, purchased clothing, provided their phone numbers during the sale, and later received a text inviting them to “opt-in” to a list for additional discounts. You can see the offending text message below.

Bebe Text Message

Bebe Stores filed motion to dismiss a TCPA text message marketing lawsuit against them, based on the fact that the above message was informational or administrative, not an advertisement, therefore they didn’t need prior written consent from their customers to send it. What did the judge think about this?

“The pleadings here establish a plausible lack of any prior express written consent by plaintiff to receive such messages. Moreover, the Court finds that the message at issue plausibly constitutes an ‘advertisement’ and that it was plausibly sent for ‘telemarketing’ purposes as the regulation defines those terms.”

Then went on to state that…

“Here, the message offered ‘10% OFF reg-price in-store/online’ on Bebe’s goods, presumably to encourage future purchases. Defendant argues the fact that the message asked plaintiff to ‘confirm [her] opt-in’ conclusively demonstrates she previously consented to receive it. However, it is plausible that a marketing message might be sent with such language even in the absence of actual prior express consent.”

Humm… Where have we seen this type of disregard for getting a customer’s consent before sending them a text message, even if it’s a text message asking them to opt-in? Oh yea, the Jiffy Lube TCPA lawsuit, which cost them $47 million.

Lesson Learned: As a retailer, always get prior written consent before sending your customers text messages, or you could easily end up on the receiving end of a TCPA text messaging lawsuit. Looking to opt-in customers in-store? We recommend either doing so through the use of a SMS short code (Text SALES to 33733), or some sort of point of sale integration, where the customer types in their mobile phone number, only after first consenting to receive text messages.

Jump to Content