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Legal Review: Will In-App Messaging Lead to the Next Novel Theory of Telemarketing Liability?

1 Jul, 2017 By: Stephen R. Freeland, Daniel S. Blynn Response


With the availability of potentially high statutory damages, the federal Telephone Consumer Protection Act (TCPA) and state telemarketing statutes have become some of the most highly litigated laws for the plaintiffs’ class action bar. With every amendment to a telemarketing law, new technologies emerge designed to effectuate the same calling practices that have been in place previously — but with mitigated risk.

For instance, after the Federal Communications Commission (FCC) issued its July 2015 Omnibus TCPA Order, which expanded the definition of what constitutes a prohibited autodialer, a number of vendors developed calling technologies that were marketed, and have since been adjudicated, not to constitute autodialers due to the level of human involvement needed to place a call. Companies also have turned to “soundboard” technology — technology involving a two-way communication between the call representative and consumer, in which the representative selects from a menu of audio clips to provide relevant, responsive information to the consumer in a dynamic, conversational manner — to avoid prohibitions on robocalls.

Additionally, several petitions remain pending before the FCC requesting that the agency issue a rule declaring that delivering a voice message directly into a consumer’s voicemail box does not constitute a “call” that would be subject to the TCPA in the first instance. The cycle then continues with new laws passed to address these new technologies.

This game of cat-and-mouse between new telemarketing regulation and technological advancement (or technological advancement and responding regulation) has continued, with several states amending their respective telemarketing laws in a manner that, arguably, could extend to in-app messaging.

Connecticut recently amended the definition of “telephonic sales call” in its telemarketing statute to mean “a telephone call made by a telephone solicitor, or a text or media message sent by or on behalf of a telephone solicitor, to a consumer” for advertising or marketing purposes. The terms “text message” and “media message” are defined synonymously to mean “a message that contains written, audio, video or photographic content and is sent electronically to a mobile telephone or mobile electronic device telephone number, but does not include electronic mail sent to an electronic mail address.”

Although the terms utilize the same definition, it is unclear what the Connecticut legislature intended by using both terms. It may be that “text messages” and “media messages” are two different types of messages, with the latter including in-app messages. Under Connecticut’s amended statute, a company must obtain the consumer’s prior express written consent prior to sending such advertising or marketing “media messages.”

Similarly, New Jersey recently amended the definition of “text messaging” in its telemarketing laws to mean “the wireless transmission of text, images or a combination of text and images by means of a cellular telephone, a paging or message service, a personal digital assistant or any other electronic communications device.”

An enterprising plaintiffs’ attorney might argue that the breadth of the law sweeps in in-app messages. New Jersey prohibits the sending of “an unsolicited advertisement by means of text messaging without first receiving permission from the intended recipient.”

To date, we have not identified any governmental enforcement actions or private lawsuits that have been brought under these statutes contending that they apply to in-app messaging. Given the recent effective dates of both statutes, particularly New Jersey’s, this is not surprising. However, the relative dearth of available legislative history for these statutes — and the potential breadth of the relevant definitions — could lead a court to interpret them to include in-app messaging from an app provider to a consumer. There are, of course, also good arguments that they do not.

Nonetheless, TCPA-related policy and litigation trends are fast moving and fluid. Companies interested in transmitting in-app messages and push notifications without first obtaining appropriate consent should consult with experienced counsel to determine risk exposure and develop risk mitigation strategies. ■


About the Author: Stephen R. Freeland

Stephen R. Freeland

About the Author: Daniel S. Blynn

Daniel S. Blynn

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