Telephone Consumer Protection Act

In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two links near the bottom of the third column of links in a website footer.  Website developers – and their lawyers – should take note of this case, part of an emerging trend of judicial scrutiny over how browsewrap terms are presented. Courts have, in many instances, refused to enforce browsewraps due to a finding of a lack of user notice and assent. In this case, the most recent example of a court’s specific analysis of website design, a court suggests that what has become a fairly standard approach to browsewrap presentment fails to achieve the intended purpose.   

An Important Issue for Text-Message Marketers

There has been an uptick in litigation under the federal Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 – likely due to the increased use of mobile marketing (not to mention the availability of statutory damages between $500 and $1,500 per violation).  And

The Ninth Circuit Court of Appeals issued its opinion today in Satterfield v. Simon & Schuster, Inc., a case involving the applicability of the Telephone Consumer Protection Act to text messages sent to cellular phones. The appeals court reinstated a TCPA claim against Simon & Schuster and remanded the case for resolution of disputed fact issues. But not before delving deeply into the dictionary to construe some of the critical terms in the statute and in the agreement pursuant to which the subject text message was sent.

Significantly, the appeals court concluded that because a “call” can include a text message, not just a voice call, the TCPA applies to a text messages sent to a cellular phones. The appeals court also narrowly construed the contractual term “affiliate,” which defined the scope of consent on the part of Satterfield, the text message recipient in this case. But whether the particular text message sent to Satterfield violated the TCPA is subject to the resolution of disputed fact issues on remand.