Affiliate Marketing, Mobile Advertising, Lead Generation and TCPA

As many in the marketing industry know, affiliate marketing is one of the most cost-effective techniques for monetizing web site traffic and driving sales. New technologies such as mobile advertising and telemarketing are challenging the established methods. Telemarketing to users of mobile phone via “robocalls” or text messages is just the newest trick in the affiliate marketer’s arsenal.

Summary

The Telephone Consumer Protection Act (“Act”) was passed in 1991. The Federal Communications Commission’s (FCC) rules and regulations implementing the Act makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a cellular telephone service, or any service for which the called party is charged for the call. Recent decisions provide guidance on how affiliate marketers can use text-message marketing without violating the TCPA.

Discussion

The Act makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service … or any service for which the called party is charged for the call. [47 U.S.C. § 227(b)(1)(A)(iii)]  The prohibition on calls to cell phones applies to text messaging. [Buslepp v. Improve Miami, Inc., No. 60171-CIVCOHN/ SELTZER, 2012 U.S. Dist. LEXIS 148527 (S.D. Fla. Oct. 16, 2012) (citing Satterfield v. Simon & Schuster, Inc., 569 F. 3d 946, 952-53 (9^th Cir. 2009). ]

The cases that have interpreted application of the Act have primarily focused on the issue of whether the recipient of the call had given express consent to receive the call. In addition, the majority of the cases addressing the issue have focused on calls made by a debt collector on behalf of a creditor when the creditor had obtained the cell phone number from debtor as part of the transaction creating the debt.

What does this mean for affiliate marketers that wish to use text-messaging to engage specific consumers? Two things. First, regardless of the purpose, consumers must give prior, express consent to receive text messages. Second, affiliate marketers can respond to via text messages to consumers who have provided cell phone numbers as means of contact.

The FCC has stated that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” [1992 TCPA Order ¶ 31]

Although it is unclear whether there a court has dealt directly with the issue of responding via text message to a cell phone number provided on a web site as a means to contact that cell phone subscriber, two recent cases in other similar contexts, have reiterated that “a consumer who voluntarily provides a cell phone number in the course of a transaction has given “prior express consent” under the Act to receive text messages from the entity to which the number was given.

In Baird v. Sabre, Inc., et al. [U.S. Dist. Ct. For So. Dist. CA, Case No. CV 13-999 SVW], the plaintiff had provided her cell phone number to an airline in booking a flight on the airline’s website. Subsequently, she received a text message from the defendant, the airline’s vendor, offering flight notification services. In Murphy v. DCI Biologicals Orlando, LLC, et al.[U.S. Dist. Ct. For Mid. Dist. FL, Case No. 12-cv-1459-Orl-36KRS], the plaintiff had provided his cell phone number to a blood collection center on a donor information sheet in connection with making a paid blood donation. He later received an initial text message from the defendant, a company with a controlling ownership interest in the center, notifying him that unless he replied to stop them, he would receive further text messages. After the plaintiff allegedly failed to reply, he received a second text message offering him a payment for another blood donation.

Both plaintiffs alleged that the text messages they received violated the TCPA provision that makes it unlawful to make autodialed or prerecorded non-emergency calls to a cell phone number unless the call is made with “the prior express consent of the called party.” In a 1992 order, the Federal Communications Commission (FCC) ruled that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” (emphasis added)

In ruling that the text messages did not violate the TCPA, both the California federal court in Baird and the Florida federal court in Murphy deferred to the FCC’s interpretation.

Both courts held that by voluntarily providing their cell phone numbers, the plaintiffs had given “express consent” to be contacted by the defendants on their cell phones. While the court in Baird observed that the defendant who sent the text message was a different company from the airline, it stated that “no reasonable consumer” could believe that consenting to be contacted by an airline about flight-related information did not extend such permission to a vendor for the airline.

In Murphy, the court also rejected the plaintiff’s claim that the defendants had violated the TCPA’s time-of-day and other restrictions on “telephone solicitations.” According to the court, because the text messages sought to buy something from the plaintiff rather than sell something to him, they did not constitute “solicitations” under the TCPA.

Since the text message at issue in Murphy was sent in July 2012, it was not subject to the change in the FCC’s rules that became effective on October 16, 2013, and requires prior express written consent for autodialed or prerecorded telemarketing calls to cell phone numbers. Such consent must be in an agreement that satisfies specified FCC requirements. Although the text message at issue in Baird also would not have been subject to the new FCC rules because it  was sent in January 2013,  the rules change does not affect autodialed or prerecorded  “informational” non-sales calls to cell phone numbers such as the Baird text message. Such calls can still be made with only the consumer’s “prior express consent,” which can be written or oral.

Conclusion

The Act was written to place certain restrictions on telemarketing calls and text messages. The Act exempts telemarketing calls and text messages placed to wireless phones using an automatic telephone dialing system (ATDS) and for artificial or prerecorded voice messages where the recipient has given “prior express consent.” Two recent cases have also held that where text messages are sent to recipients for purposes of buying something form, rather than selling something to the recipient, such text messages are not “solicitations” restricted by the Act.

Before conducting an Internet or mobile marketing campaign, make sure to talk to an experienced Internet marketing lawyer. Adler Law Group is here to help.