By Tyler S. Woods, J.D. Candidate, Sandra Day O’Connor College of Law.
In September of 2018, a class action law suit was filed against the Tampa Bay Rays for sending unsolicited marketing text messages to fans across the country. The complaint seeks injunctive relief, as well as statutory and treble damages between $500 and $1,500 for each member of the class action suit, per text message received; moreover, the complaint alleges that the class will consist of thousands of members who received these text messages without prior express consent.
Background
In the suit at hand, Fernandez v. Tampa Bay Rays Baseball Ltd., Case No. 8:18-cv-02251-MSS-SPF (M.D. Fla. Sept. 11, 2018), the Plaintiff alleges that the Rays baseball organization violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) when the Rays sent marketing text messages to their fans using an automatic telephone dialing system (“ATDS”) without obtaining prior consent. ATDS differs from standard telemarketing, for ATDS is an automated program that can place calls or send text messages without human involvement. The TCPA, enacted by Congress in 1991, prohibits people and entities from using an ATDS to call or text a cell phone absent the prior express written consent of the person contacted, or an emergency. Naturally, the purpose of the TCPA flows from the policy consideration to limit nuisance and intrusion from undesired telemarketing advertisements. Further, the TCPA acknowledges that advertisers who use ATDS waste both time and money of consumers, for consumers usually pay for each Short Message Service, or “SMS” text, they receive.
Provided are some of the text messages sent by the Rays marketing team via ATDS:
Opening Day is one week away!
Get your tickets now and join the Rays for the start of the 2018 season.
http://atmlb.com/2HTrLoi
Text STOP to cancel
Happy Opening Day 2018!
The Rays season begins today at 4:00pm as they take on the Boston Red Sox.
Game info: https://bit.ly/ly2GXec8h
Text STOP to cancel
Today only: $20-Press Level tickets for
Blue Jays vs. Rays matchup on Saturday, May 5, at 6:10!
https://atmlb.com/2qYO85D
Text STOP to cancel
Today only, purchase $12— lower level
tix for STAR WARS Night on Sat. 5/25
when the Rays host the O’s at 4:10 pm https://atmlb.com/2rkJy0X
Text STOP to cancel
The Rays are not the only team to have been sued for violations of the TCPA. In football, the Tampa Bay Buccaneers, the San Diego Chargers, and the Buffalo Bills faced class action suits for violating the act. In basketball, the Los Angeles Lakers, and the Los Angeles Clippers also litigated TCPA violation claims.
Proponents of the Complaint: Pro-Consumers.
Proponents of the suit place a greater weight upon the policy considerations of the TCPA, and the practical effects of allowing corporations to advertise in this manner. A baseball team is still a business, and if businesses are allowed to call and text consumers via ATDS without consent, then the amount of telemarketing to consumer’s cell phones will exponentially increase. Although one text message seems trivial in terms of nuisance and cost, if policy allowed automatic widespread advertising, then society would experience a substantial net detriment through constant telemarketing. Considering that some individuals pay per SMS text message received, advertisers would unjustly make consumers pay to view these advertisements. Furthermore, if courts ignore the TCPA, telemarketers would have a greater incentive to intrude upon people’s privacy and collect their cell phone numbers without consent. Ultimately, Congress enacted the TCPA to inhibit businesses from intruding upon, and being an undue nuisance to, the average consumer. If the Tampa Bay Rays are allowed to continue using ATDS to market their games, then an influx of other companies will likely follow. Accordingly, to deter socially detrimental business tactics, a judgment should be rendered against the Rays.
Opponents of the Complaint: Pro-Business.
The first critique of class action suits of this nature is that the alleged harms suffered are relatively weak. The complaint against the Rays alleges the following suffered harms:
Defendant’s SMS text messages invaded Plaintiff’s privacy, intruded upon his seclusion and solitude, constituted a nuisance, and wasted his time by requiring him to delete the messages. Further, Defendant’s SMS text messages caused Plaintiff to incur tangible harms such as loss of cell phone battery life and financial losses in requiring him to recharge his phone. Finally, Defendant’s SMS text messages constituted a temporary electronic intrusion upon Plaintiff’s cell phone. [Emphasis Added].
Some critics argue that these harms experienced from receiving a single text message, such as the loss of cell phone battery life, are not substantial enough to file a law suit. Given that the Plaintiffs seek up to $1,500 for each member of the class action suit per text message received, and the damages suffered appear minimal, some opponents claim that the suit is a frivolous attempt to extort money from the baseball franchise. If courts allow suits with seemingly small damages to pass the pleadings phase and enter discovery, then individuals may be incentivized to file more claims against the baseball club — despite relatively weak suffered harms — attempting to force the baseball club into a quick settlement to avoid spending valuable resources conducting discovery. In addition, if these cell phone numbers were extracted from ticket purchases, then thousands of fans are suing their own baseball team over a relatively trivial occurrence.
Conclusion
Here, the Rays face a class action law suit for allegedly texting their fans with ticket information without obtaining prior consent. At this point, the Rays have not yet answered the complaint. If this case follows the pattern of the TCPA related class action suits against the aforementioned professional sport teams, then the Rays may face between a $3 million to $19.5 million settlement. Although opponents may argue that the Rays caused the Plaintiffs minor harms, upon considering the societal impacts of the decision, it appears necessary to disallow the Rays from continuing with their advertising tactics. Nonetheless, professional sport franchises and general businesses should exercise caution before sending mass text messages to their fans and customers, or they may encounter a similar class action suit.
Tyler can be reached at tylerwoods89@gmail.com
