In a recent case in California, plaintiff Fred Weiss filed a class action lawsuit alleging that the Pittsburgh Penguins violated the Telephone Consumer Protection Act (TCPA) and breached the terms of service for their text message notification program. The TCPA generally provides a cause of action where a marketer sends unsolicited calls to a mobile phone. The term “calls” includes text messages. The terms for the Penguins Mobile Media Club indicated that fans who signed up for the messaging program would receive a “maximum of 3 messages a week.” However, Weiss alleges that he received messages in excess of that limit.

Specifically, after signing up for the program, Weiss alleges that he received more than three messages per week—at times receiving four or five messages in a single week. Instead of unsubscribing from the text message program, Weiss filed suit arguing that the additional messages were sent without consent and therefore violated the TCPA prohibition on unsolicited text messages and breached the Pittsburgh Penguins’ contract with him. In his complaint, Weiss argues that the team “intentionally and systematically transmitted text messages to individual consumers in excess of that weekly limit” and that such actions caused him harm in the form of “aggravation that necessarily accompanies the invasion of privacy caused by unsolicited text message calls.” Weiss is seeking an injunction, statutory damages, and attorneys’ fees.

Although the Mobile Marketing Association recommends that marketers notify consumers of the estimated frequency with which they will receive messages, this case provides a warning that inserting restrictive limits or terms such as “up to” or “maximum” may result in liability where a program exceeds the limit. In such situations, marketers may consider indicating slightly more messages than will actually be sent to provide flexibility or avoiding overly restrictive terms such as those indicated above. And, in any case, marketers should not exceed the consent provided by consumers.

Arent Fox continues to monitor issues related to the TCPA and marketing. Please contact Anthony V. Lupo, Sarah L. Bruno, Matthew R. Mills, or Eva J. Pulliam with questions.