Google, Inc. and Slide, Inc. have joined the list of marketers that are being sued under the Telephone Consumer Protection Act (TCPA). The TCPA provides a cause of action where an automatic dialer is used to make unsolicited calls to a mobile phone. The term “calls” includes text messages. The lawsuit, filed in the US District for the Northern District of California, alleges that the defendants violated the TCPA by sending text messages in violation of the Act.

In this case, the plaintiffs were individuals whose phone numbers were registered for “Disco,” a group text messaging application owned by Google, created by Slide, that permits consumers to sign up groups of numbers to facilitate the process of sending bulk text messages. An individual does not have to provide consent for Disco to allow a third-party to register that person’s number to receive the bulk messages. However, once a number is registered, the Disco service sends automated advertising messages to the number. According to the complaint, the Disco application sent advertisement text messages to numbers that were registered for the service, including those numbers that were listed without the knowledge or consent of the phone owner. Individuals that received the ads filed this complaint under the TCPA claiming that the messages were automated, unsolicited advertisements in violation of the Act. Thus far, the court has denied the defendants motion to dismiss.

This case is yet another case filed under the TCPA. Citibank and Twitter are also facing lawsuits based on alleged violations of the TCPA due to their practice of sending confirmation messages in reply to consumers’ STOP responses. See Ryabyshchuk v. Citibank, 11-cv-1236 - IEG (S.D. Cal. 2011); Moss v. Twitter, 11-cv-0906 - LAB (S.D. Cal. 2011). In the Citibank case, in response to a consumer’s credit card application, Citibank sent a text message to the applicant’s cell phone requesting that he contact Citibank’s credit card division. The applicant replied “STOP” to opt out of future text messages. Citibank responded to that message confirming that the applicant would no longer receive text alerts. As a result, the applicant has now sued Citibank, alleging that both the original text and the confirmatory text violate the TCPA. In the Twitter case, the plaintiffs opted in to receiving text messages, but later opted out. The plaintiffs claim that Twitter violated the TCPA by replying to their STOP commands with a confirmation text. Interestingly, in those cases, the consumers’ claims that such practices violate the TCPA appear to contradict the Mobile Marketing Association’s “U.S. Consumer Best Practices” guides, which direct advertisers to reply with a confirmatory message after receiving the STOP command. To date, no decision has been released in the Citibank or Twitter case.

While the case against Google and Slide is not likely the last case in the string of lawsuits alleging violations of the TCPA, the industry hopes the court will provide additional guidance on these issues in the coming months. Arent Fox will continue to monitor cases involving the TCPA and advertising.

Please contact Anthony V. Lupo, Sarah L. Bruno, Matthew R. Mills, or Eva J. Pulliam with questions.