This video is brought to you by Innovista Law, home to the TCPA Defense Force. Innovista's lawyers have helped companies navigate potential TCPA landmines through effective risk-mitigation and compliance strategies.
To learn more about the TCPA and their services, visit www.tcpadefenseforce.com/tatango-partnership
Can a single text message land you in legal trouble? In short, yes—but it depends on the message whether you have the recipient’s consent to send it.
In this article, we take a look at the Telephone Consumer Protection Act (TCPA) court case Edelsberg v. Vroom and what marketers can learn from it.
About Edelsberg v. Vroom
One afternoon in 2016, Mark Edelsberg posted an ad on craigslist selling his mom’s 2010 Prius. In the ad, he included his cell phone number and invited potential buyers to send offers. Two days after publishing the ad, he received a text from Vroom, an online used car dealer, that said:
“Hi Mark, I am Scott at Vroom. I saw you listed your Prius online & can make an offer but need you to fill out a few more details (takes 4 min) http://go.vroom.com/syc/6C9179. Text STOP to Quit”
Mr. Edelsberg didn’t open the link in the text. Instead, he sued Vroom for allegedly messaging him without consent, breaking the TCPA regulations.
A Lawsuit Over One Text Message?
Why was Edelsberg so angry about one text message? The text itself probably didn’t bother him that much, but there were other incentives. If he was mad and wanted to sue Vroom over the single text, he could have taken the company to small claims court. If he won, he’d receive between $500 and $1,500 for what would likely amount to a significant amount of time spent in court. Why go through so much hassle over one text message for as little as $500?
Instead of going to small claims court, Edelsberg became the main witness in a class-action lawsuit. A class action aims to represent a class of people. In this case, the suit represented the other consumers who received similar text messages from Vroom. Since the lawyers in a class action represent thousands of people, they stand to win a lot more money if they succeed in court.
Given such a significant potential gain, many lawyers actively seek plaintiffs like Edelsberg with billboards, TV ads, and even text messages. Typically, these lawyers promise to make the process as frictionless as possible, requiring plaintiffs to appear in court only when absolutely necessary. They point to the potential earnings from $1,000 to $10,000 in addition to what everyone else in the class makes from winning the case.
The Outcome of Edelsberg v. Vroom
There were two key issues in this case:
- Did Vroom have consent to send this message?
- If so, what level of consent was required to contact Edelsberg in this way? (In other words, did Vroom need express written consent, or was consent implied when he posted his number on craigslist?)
Ultimately, an FCC rule in place for over 15 years swung the case in favor of Vroom. The rule states that when a person makes their phone number available for a particular commercial purpose, they’re giving prior expressed consent for businesses to contact them about that area of business. So, if an individual provides their phone number to a bank, the bank can call them about business related to the bank. However, the bank can’t contact the person about something unrelated to that area of business, such as selling ice cream sandwiches.
Since Mr. Edelsberg listed his phone number publicly on craigslist seeking offers from potential buyers, Vroom had permission to contact him, though only about making that offer. In the end, the judge ruled that even though Vroom didn’t send an offer, the link the company sent was for the sole purpose of getting more information on his car before sending an offer.
Imagine if, in contrast, the text that Vroom sent had said something to the effect of “Hey! You should list your car on vroom.com!” The court would have likely seen that type of message as pure marketing because it isn’t directly related to the business for which Mr. Edelsberg listed his phone number, so the lawsuit would have likely had a very different outcome.
Instead, the case was dismissed, and Mr. Edelsberg didn’t receive any money.
Is Vroom in the Clear Now?
Vroom is and isn’t in the clear now. Because the company won this case, it would likely win a similar case in another state. So, other lawyers probably won’t try suing Vroom for the same type of behavior again.
However, if Vroom does face another lawsuit for the same type of behavior, say, in Texas or even in the Southern District of Florida again, a different judge could have a different opinion.
What Text Message Marketers Can Learn
First and foremost, it’s vital to work with TCPA attorneys and SMS marketing providers like Tatango. Involve them in the process of designing your messaging campaigns rather than waiting until you’re facing a lawsuit. TCPA compliance doesn’t just help you avoid lawsuits. It also helps ensure your campaigns are successful. If you’re obtaining proper consent, and your recipients have indicated they want to hear from you, you’ll get better results from your messages, and you’ll be safe from costly lawsuits.
Every message a business sends isn’t necessarily a marketing message. Sometimes a message is informational. Be sure you obtain consent to send the types of messages you’re planning to send.
Vroom’s message upset at least one person. Even if a message is technically legal, some recipients may still consider it spam. To get the best results and reduce your unsubscribe rate, in addition to considering the legal ramifications of a campaign, always think about the consumer’s experience of your brand.
Tatango Can Help You Meet TCPA Requirements and Avoid Lawsuits
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. Our team of experts is ready to help—contact us today to get started.