On October 28, 2024, The Sports Prophets Inc. ("Defendant") was sued in the United States District Court for the Northern District of California for allegedly violating the Internal Do Not Call ("DNC") list compliance provisions of the Telephone Consumer Protection Act ("TCPA"). The TCPA requires that telemarketing companies maintain a list of consumers that have requested not to receive further telemarketing calls/texts from, or on behalf of, said companies. One of the remedies afforded to consumers under the TCPA is the filing of unsolicited text message lawsuits against telemarketing companies. In some TCPA text lawsuits, the issue of failure to comply with internal DNC rules creates a private right of action for the recovery of statutory damages.
In Rodrigues v. The Sports Prophets Inc., Plaintiff alleged that he received a text message promoting Defendant's sports betting picks. Plaintiff replied by texting "1" to communicate his unsubscribe request. Plaintiff alleges that he received three more text messages from Defendant after sending this opt out request. The TCPA allows for the filing of text message-related lawsuits if telemarketers, among other things, do not institute procedures for: 1) creating a list of consumers who elect to opt out of the receipt of future communications; and 2) training their employees on how to honor such opt out requests. Because Plaintiff requested that his cell phone number be added to Defendant's internal DNC list and Defendant continued to send him text messages, it would appear that each of the three subsequent text messages may have been sent in violation of the TCPA's Internal DNC provisions.
Gambling Advertising Companies Are at High Risk of TCPA Text Lawsuits
As our readers are aware, in the years since Murphy v. National Collegiate Athletic Assoc., was decided, 38 states and the District of Columbia have legalized online sports betting, resulting in a cascade of gambling advertising. With a massive sports betting market blossoming across the nation, the door has opened for companies (such as Defendant) to join the gambling advertising fray. While Defendant is not subject to all of the same regulations as sportsbook operators, it is still susceptible to TCPA text lawsuits if strict telemarketing compliance procedures are not implemented.
Maintain Strict Internal DNC Compliance Procedures
It is very likely that the Defendant in Rodrigues could have avoided this text lawsuit if it observed the TCPA's Internal DNC provisions. As a bright line rule, once a consumer asks to be added to an internal DNC list, companies are generally prohibited from contacting the consumer again.
Among other measures, the internal DNC provisions of the TCPA further require that:
- Companies place consumer names, if provided, and telephone numbers on their internal DNC lists at the time requests are made;
- Companies honor consumer internal DNC requests within 30 days from the date of such requests; and
- Companies engaged in placing artificial and/or prerecorded voice calls have a written policy, available upon demand, for maintaining a DNC list.
Why is Rodrigues Important to Your Business?
The sports betting market continues to expand, and associated advertising opportunities abound. The Rodrigues case is a reminder that gambling businesses are subject to the same TCPA pitfalls, and corresponding text lawsuits, as traditional marketing companies. It is important to note that internal DNC compliance is but one of the many issues that companies face with respect to potential TCPA violations. Readers of this blog know that the TCPA allows for class members to recover damages of $500 to $1,500 per violation. Because Rodrigues is a putative class action, Defendant is potentially liable for thousands of violations of the TCPA's Internal DNC provisions.
Against this backdrop, it is critical that companies maintain proper internal DNC compliance procedures. Telemarketers must also ensure that their personnel are well-trained in observing internal DNC consumer protections.
The attorneys at Klein Moynihan Turco regularly advise clients on DNC compliance and defend TCPA class action matters.
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The Telemarketer's Guide To Do-Not-Call Compliance
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