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In the above video, Tatango CEO Derek Johnson and Joe Bowser from the TCPA Defense Force discuss a specific TCPA Case and its repercussions for the SMS marketing industry. If you prefer to read instead, see the post below.
Serban v. Cargurus, Inc.
Text messages can be a highly effective marketing tool for brands, announcing campaigns and building relationships with customers. But violating the rules in this industry can bring Telephone Consumer Protection Act (TCPA) lawsuits and fines ranging from $500 to $1,500 per text message if a customer had not opted-in. Examining how the TCPA is currently applied and interpreted is vital to stay ahead.
One recent case worth examining is Serban v. Cargurus. In this instance, Serban (the receiver of the SMS messages) brought a lawsuit against Cargurus for several texts sent to her phone about cars listed online. This website has a send-to-phone option, where details on specific vehicles can be sent to any number. After examination, it seems a third-party mistyped Serban’s phone number into the online form. Eventually, the court ruled in Cargurus’ favor.
What SMS Marketers Can Learn From This Case
These unwanted messages violated the TCPA, even accidentally. However, the court decided Cargurus could not be held responsible since a third-party actually “sent” the first message. Since Cargurus’ system simply took the given number and sent messages, there was no intentional action on their end. Technically, the person who mistyped the phone number could be at fault here. But in a case like this, a lawsuit against this individual for a typo would be unlikely to ever occur. Traditionally, there has been a backstop of common sense when it comes to the TCPA, where small-scale accidental violations are focused on less than pervasive and intentional spam texts.
The TCPA is viewed as a Strict Liability Statute, which means intention does not matter. If the rules are broken, even without knowing it, there is still a violation. A good example would be a stop sign. A driver would be fined for running a stop sign even if they didn’t see it. This is why the TCPA’s fines range from $500 to $1,500 dollars. If illegal messages were sent unknowingly, the fines would be much lower than texts intentionally breaking the law.
Because Cargurus kept careful records, they were able to prove the chain of events and avoid liability. This drives home an important message for everyone in the SMS marketing world: protect yourself by saving everything. The TCPA has a statute of limitations on lawsuits, so records must be kept for at least four years after a campaign ends. If a pilot program or experimental system is tested, those records must also be saved and accounted for. The same goes for changes in marketing agencies: make sure every message is backed up. During a lawsuit, screenshots of every version of a brand’s website and customer-facing experience are valuable in court, as well. If a judge understands every step taken to opt-in, it will make your defense much easier.
Staying Ahead of the TCPA
Here at Tatango, we also recommend using a double opt-in system. If a customer signs up to receive an initial text, they are also asked to confirm a final time before receiving future messages. This protects you from cases of mistyped (intentionally or not) numbers, like in Serban v. Cargurus. This kind of procedure could be the difference between a successful campaign or bankruptcy if your company is ever brought to court.
We also recommend reaching out to TCPA-trained attorneys to guide your brand through the TCPA’s rules. To learn more about text message marketing, download our TCPA Survival Guide or contact our SMS marketing experts here at Tatango.