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Twitter class action alleges MMA SMS standards violate TCPA

Two California men have filed a class-action complaint against Twitter, alleging that the company violated the Telephone Consumer Protection Act by sending an SMS confirmation to confirm opt-out of future communications.

The plaintiffs, Drew Moss and Sahar Maleksaeedi, claim they had initially opted-in to receive messages from Twitter. The suit is based on the final message to confirm opt-out, which has been standard across the mobile industry.

?In the past few years, there have been a number of cases in which companies sent unsolicited text messages to consumers, and courts have ruled that those messages violated the TCPA,? said Gonzalo Mon, a partner at Kelley Drye & Warren LLP, Washington.

?The twist in this case is that the plaintiffs actually opted-in to receive messages from Twitter,? he said. ?Later, the plaintiffs opted-out of receiving messages, and Twitter sent them one final message to confirm the opt-out request had been processed.

?According to the plaintiffs, this confirmation message violates the TCPA.?

Twitter is a Web site owned and operated by Twitter Inc. that offers a microblogging service, allowing its users to send and receive messages called tweets.  

The grey area
With more companies contacting consumers via an automated message to confirm opt out, this lawsuit impacts virtually all SMS campaigns.

Most agreements in the mobile space require companies to comply with the Mobile Marketing Association?s Consumer Best Practices Guidelines.

The guidelines require a company to send a confirmation message when a ?stop? or any opt-out keywords are sent to the program.

Here is the message Twitter sends when consumers opt out of receiving further communications from the company

Violations of the TCPA have been flooding the news over the past few years. The Twentieth Century Fox class action lawsuit is most notable (see story).

However, the suit against Twitter marks the first time that a company is sued over the confirmation message sent to consumers upon opt-out.

The damages
The plaintiffs claim they incurred certain wireless charges or reduced data for which they had previously paid.

The plaintiffs are seeking an award of $500 in statutory damages for each and every violation of the act.

?Although companies can usually assume that complying with industry standard guidelines, such as the MMA Guidelines, means they will also be in compliance with the law, this lawsuit demonstrates that doing things right isn?t always a guarantee that plaintiffs? attorneys won?t file a lawsuit in an attempt to force a settlement and payments,? Mr. Mon said.

?Companies should check with their counsel to determine whether they need to modify their practices in response to this lawsuit,? he said.

Click here to view the entire class-action lawsuit filing

Final Take
Mackenzie Allison is associate reporter at Mobile Marketer