Feb 03

Text to Vote: A Cautionary Tale for SMS Marketing Under the TCPA

Promotional text messaging, especially in the sports industry, is growing in popularity. More and more sports teams and advertisers are reaching sports fans through their mobile devices. As most companies know by now, the FCC rules implementing the Telephone Consumer Protection Act apply to promotional text marketing campaigns. And on January 26, 2015, a federal district court weighed in on FCC regulations that impact whether a consumer has consented to receive promotional text messages. The federal court applied FCC regulations that state that a consumer whose phone number is “captured” via a text message (or caller ID) is not considered to have given express consent to receive additional calls and texts.


As previously discussed here and here, the TCPA bars the improper use of an automatic telephone dialing system or ATDS. The TCPA prohibits businesses from using an ATDS to call or text people without their prior express consent.

In Phillips v. Mozes, Inc., No. 2:12-cv-4033 (N.D. Ala. Jan. 26, 2015), the plaintiff claimed that he responded to a scoreboard announcement during a 2011 football game between the University of Alabama and Louisiana State University instructing fans to cast a vote for the school they support. He then received an unsolicited message (text #1) that included a Coke Zero ad and asked him to provide his date of birth so he could enter a contest and join the “Coke Zero mobile list.”

The plaintiff never responded to this request, but received a second unsolicited message urging him to continue to vote for his favorite team “to make sure they win” (text #2). He responded by voting for Alabama again, and then received the Coke Zero ad again with the request to provide his date of birth (text #3). Ultimately, the plaintiff received a total of five unsolicited text messages during the game. Importantly, he did not claim any violation of the TCPA with respect to text messages he received from the defendants after he transmitted his date of birth to enter the contest for an autographed football.

The Decision

The plaintiff alleged a violation of TCPA § 227(b)(1)(A), which governs the transmission of calls or texts using an ATDS. At a hearing on the motion to dismiss, the parties stipulated that there were only two text messages at issue (texts #1 and #3). The two messages were the texts sent to the fan in response to his “votes” for Alabama, which stated “Reply with your DOB (MMDDYYY) to enter the contest for an Autographed Football. . . .”

Defendants Coca-Cola and their marketing company moved to dismiss the claims and argued that the plaintiff expressly consented to receive these texts when he “voted” for Alabama to win. The court did not buy the argument at this early stage of the case.

With respect to “prior express consent,” the court noted that FCC regulations, often cited by courts, state 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.” But the regulations also state that “if a caller’s number is ‘captured’ by a Caller ID and ANI device . . . , the caller cannot be considered to have given an invitation or permission” to receive calls or texts. In re Rules & Regs. Implementing Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (Oct. 16, 1992) (emphasis added).

The court held that because the fan’s text messages that voted for Alabama did not contain his telephone number in the body of the message, the complaint plausibly alleged that the fan’s number was “captured.” And because “capturing” cannot be considered express consent to receive unsolicited texts under the TCPA, the court allowed the claims against Coca-Cola to go forward.

Montgomery McCracken will continue to monitor the impact of this decision and the growing trend by TCPA plaintiffs to bring class actions aimed at promotional messaging in the sports industry. We will also be hosting a webinar, “TCPA Update: The Year in Review and Trends for 2015,” on February 26. Click here for more information and to register.

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