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The TCPA text messaging case between plaintiff, Ricky R. Franklin, and defendant, SMS software platform company Express Text, occurred in March 2018. In this article, we address the events leading up to the TCPA case, what the ruling was, and TCPA tips for text message marketers.
What Led to Ricky R. Franklin v. Express Text
From July 2015 to October 2016, Ricky R. Franklin received 115 text messages from WorldWin Events through Express Text’s software platform. In September 2016, Mr. Franklin responded “Help” to one of the text messages and received a response directing him to call Express Text to opt out of future text messages. An Express Text employee received the call and removed Mr. Franklin from the company’s database.
After he opted out in September 2016, Mr. Franklin continued the conversation by texting messages like, “Hi” and, “Is this a real person answering these text messages?” Mr. Franklin believed all the messages he received before and after opting out violated the TCPA.
Summary of the Ricky R. Franklin v. Express Text Trial
Ricky R. Franklin chose to represent himself in court without an attorney. The decision to bring forth litigation against Express Text was unusual. Express Text provided the software platform to WorldWin Events, who sent the text messages to Mr. Franklin. Express Text believed they shouldn’t have been sued in the TCPA lawsuit because they didn’t craft or send the text messages to Mr. Franklin.
The TCPA specifies the liability of the sender of the message. Case law states that if you don’t control the decisions regarding whether to send messages, when to send them, and to whom, you’re not the sender. Express Text moved for a summary judgment. They believed they were not the senders of the messages, and they should win the case without moving forward with the trial.
Mr. Franklin responded by stating he wasn’t aware of the inner workings of the contractual agreements between Express Text and WorldWin Events. He asked for time to review the evidence before dismissing the case. The trial court ruled in favor of Express Text, stating that the facts they presented were undisputed. Mr. Franklin appealed to the 7th Circuit Court of Appeals in the Chicago Federal District Court.
Ultimately, the 7th Circuit Court vacated and remanded the appeal, which means the original ruling to grant Express Text a summary judgment was now void. Mr. Franklin was not permitted to pursue evidence concerning text messages he sent after opting out because his texts to a known automated system after opting out of service with anything other than “STOP” provided consent for a reply.
TCPA Tips for Text Message Marketers
Text message marketers should keep a few things in mind when reviewing a case like Ricky R. Franklin v. Express Text. Courts have begun to take a harder line regarding SMS opt-outs. The consumer’s as well as the sender’s software keep a text message record, and courts can see, in detail, who’s saying what to whom. Express Text and WorldWin Events informed consumers to text “STOP” if they no longer wished to receive text messages.
The TCPA has a four-year statute of limitations. It’s a good idea to keep records of text messages to protect yourself against litigation. When transferring from one SMS platform to another, request all records from the original SMS provider before moving to the new company. The burden is on the sender to show undisputed evidence proving consent. Keep a minimum of four years of records of messages sent and received.
Work with Tatango to Meet TCPA Requirements
Tatango has been an industry leader for more than 13 years. Our text message marketing platform offers tools to help you meet TCPA consent requirements to reduce your risk of litigation. In addition to consulting with an attorney, our team of experts is ready to help—contact us today to get started.