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Size Doesn’t Matter – Small Injury Has Big Impact on TCPA

Size Doesn’t Matter – Small Injury Has Big Impact on TCPA

“To understand why the TCPA is so critical to businesses and consumers today, you should understand its purpose.”

You may be familiar with the recent U.S. Supreme court ruling regarding the Telephone Consumer Protection Act (Learn more about the TCPA here) in the case of Spokeo, Inc v. Robins and its impact on mobile marketing. This important ruling set a precedent for plaintiffs to first prove injury-in-fact before filing a lawsuit, the intent of which was to deter frivolous litigation as well as protect consumers (read more of our thoughts on that ruling here). But the June 30, 2016 decision in Mey v. Got Warranty Inc., et al., has greatly impacted what constitutes an “injury” and here’s what you need to know.

First, to understand why the TCPA is so critical to businesses and consumers today, you should understand its purpose. Originally enacted in 1991 to protect consumers from increasing unregulated telemarketing calls and faxes, the TCPA has been extended to cover other methods of communication, including text messages or applications that allow contact with users.

This protection serves 2 purposes: It ensures the privacy of the consumer, and it shields the consumer from harm or injury. The key factor to this protection is consent, which is required by each individual in order to receive calls or messages. Additionally, a clear and easy opt-out method should also be provided for the user to revoke consent at any time. The TCPA set these guidelines to protect consumers and smart businesses are making sure they comply.

The increasing popularity of mobile messaging combined with the growth of eCommerce paved the way for numerous lawsuits driven by uncapped statutory damages, and ambiguities that make interpretation of the law difficult, to say the least. This is where the injury part comes in. While the Spokeo ruling found that plaintiffs are required to provide proof of a concrete injury, the more recent Mey case took it a step further by finding that:

  1. Unwanted calls cause both tangible harm (no matter how small) in that the recipient lost cell phone minutes or battery life requiring them to charge their phone and resulting in a loss of time and money.
  2. And that intangible harm in the form of unwanted calls is, in fact, basis for proving concrete harm as they can disturb or frustrate the receiver and therefore sufficient to file a lawsuit.
“The recent ruling makes it even more important for brands to ensure their SMS partner is aware of the TCPA rules and follows Mobile Marketing Association (MMA) best practices.” - Dennis Becker, Mobivity CEO

Since marketers know that the value of text messaging is in sending the right message, to the right person, at the right time; this new ruling places more importance than ever on understanding the TCPA and its impact on mobile marketing. Delivering personalization to customers is crucial but privacy is and continues to be paramount.

If you have questions about the TCPA and how it affects you or your business, please consult an attorney and an experienced SMS provider who is well versed in TCPA regulations and compliance. The more insight we have about the laws that govern mobile marketing, the more successful we can be delivering our message. To learn more TCPA rules and regulations or how Mobivity ensures our customers are protected, call us at (877) 282-7660.


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