TCPA News: “Are You Going to Buy this Stuff or What?”

Posted: November 15, 2016

hiresHave you ever been behind someone in line in a department or grocery store and they finally make their way to the clerk with a shopping cart full of items and realize they’ve forgotten their wallet or purse? I have and I’ve wondered, “What is the clerk supposed to do with all this stuff? Is the customer coming back? Will they have to go around the entire store again and find all of the same stuff again later?”

This is what often happens with online “shopping carts” more often than not. Consumers fill them with goods but never “check out” to complete the purchase. According to Baynard Institute, up to 68% of consumers abandon their online shopping carts. If that was happening at my local grocery store, it would certainly begin to get the manager’s attention with full shopping carts left all over the store!

In a recent TPCA court case, Wick v. Twilio, the plaintiff partially completed an online form to receive a free sample. After partial completion of the form, he closed the webpage without submitting it. The consumer subsequently received an automated text message saying, “Your order at Crevalor is incomplete and about to expire. Complete your order by visiting [hyperlink].” He also received a call urging him to complete the process. The plaintiff alleged that the text was telemarketing under the definition of the TCPA and that he had not provided the seller with his express written consent to receive autodialed marketing calls or texts on his cellphone.

In the findings for the defendant, the court said the “text and call received by plaintiff were also related solely to the consumer transaction he had initiated…Plaintiff does not allege that the text or call offered or encouraged the purchase of any product other than the free sample for which plaintiff submitted his information.”

What is interesting about this case, however, is that the sample was “free” and, therefore, the text may not necessarily meet the FCC’s definition of “telephone solicitation” (a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services…). If your company uses these tactics now, or plans to do so, we at CompliancePoint do not think this business practice is without risk. Your case may end up in a District Court that may not be as “business friendly.” Or, you may ultimately win your case, but spend a lot of time and money in the process of defending yourself. Always remember, they are out there, lurking.

We understand every aspect of text message compliance may be tough to navigate. Please feel free to reach out to us at consulting@compliancepoint.com as we are happy to answer any questions you may have. You can also find additional information through our recorded Text Message Compliance webinar located in our Resource Center.

Kevin Mayfield

Author: Kevin Mayfield

Kevin Mayfield is a Managing Consultant at CompliancePoint, focusing on US Federal and State consumer privacy law and direct marketing compliance. He is dedicated to keeping his clients updated on the latest changes in the regulatory landscape. He feels his business development and account management experience in a heavily regulated industry is what helps him most in understanding what his clients are facing in their daily marketing efforts as they relate to compliance. Kevin has earned a Certified Information Privacy Professional (CIPP/US) certification from the International Association of Privacy Professionals (IAPP), a Customer Engagement Compliance Professional (CECP) certification from the Professional Association for Customer Engagement (PACE), and received his B.A. in Speech Communication from the University of Georgia. He enjoys family, fishing, and golf in his spare time.

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