A class-action lawsuit was filed recently against a Florida dealership in federal court for alleged improper use of automated text messages to service customers. The lawsuit alleges violations of the Telephone Consumer Protection Act ("TCPA") for the transmission of thousands of text messages about open recalls to potential customers.
Most of these texts were sent using an automated dialing system known as "robotext".
According to the lawsuit, the dealership contracted with a vendor to obtain names and cellphone numbers of prospective service customers whose vehicles had been recalled but not repaired. The texts encouraged the recipients, who had no prior relation with the dealership and didn't authorize such calls, to schedule service appointments. The suit further maintains that the dealership sent the text messages for the sole purpose of soliciting new service work and not for the purpose of notifying customers of open recalls. The suit seeks damages, attorney fees and an injunction against sending further unsolicited text messages without consumers' consent.
Last February one of our articles focused on the use of text messaging in dealership marketing and the compliance guidance issued by the Federal Communications Commission ("FCC"). Federal law restricts the use of automatic dialing systems, text messages, prerecorded voice messages and faxes, and requires advertisers to eliminate consumers listed on the national Do Not Call Registry. Violators face potential damages of $500 to $1,500 per violation.
The TCPA restricts autodialed calls and text messages to cell phones. Autodialed calls includes the use of any equipment that has the capacity to store or produce numbers to be dialed and dial them without human intervention. The TCPA prohibits autodialed calls or text messages, as well as prerecorded calls, unless made with the prior express consent of the called party.
Generally when a service advisor texts a one-to-one personal message to a customer to obtain approval for job repairs or to notify a customer about vehicle status it is not considered a marketing message and therefore not a violation under the TCPA. However, there is some risk in sending text messages that are not connected to the services requested by the customer. For example, when a customer brings a car in to get a check engine light diagnosed but the service advisor texts the customer that tires or wipers need to be replaced then the text has become a marketing or solicitation message instead of a follow up on the services requested. This can expose the dealership to costly fines, penalties and lawsuits. Therefore, it is imperative that you educate all personnel who communicate with customers on the proper methods and contents of communications.
The potential liability for violating the TCPA makes it vital that dealers work closely with their personnel and marketing teams to ensure compliance with the TCPA. Generally a fine is only issued after a consumer files a complaint over the receipt of multiple calls or texts. However, as is the case with the dealership in Florida, dealerships are being sued by consumers and aggressive consumer law firms seeking millions in damages for just one or two alleged inappropriate messages.
For more information on the TCPA or how you can use texts in your marketing campaigns contact Stevan LaBonte at 516-280-8580.
If you would like to read the full FCC Enforcement Advisory visit apps.fcc.gov/edocs_public/attachmatch/DA-16-1299A1.pdf.
