While working on another article I came across the case below. I’ve written articles recently about debt relief companies and the exposure of Telephone Consumer Protection Act claims.
Michael Perri v. Rescue 1 Financial
“1. Defendant Rescue 1 Financial, LLC (“Defendant” or “Rescue 1”) is a national financial services company that focuses on consumer debt management such as: debt settlement, debt consolidation and other bankruptcy alternatives.
2. To attract customers, Defendant advertises via radio, print and online. Defendant collects and stores data, including cellular telephone numbers, for the purpose of sending automated blast messages promoting its products to consumers’ mobile phones in the form of Short Message Service (“SMS”) text messages, the text messaging service component of mobile telephones.
3. The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. and its implementing regulations, 47 C.F.R. §64.1200, et seq. prohibit companies, such as Defendant, from sending automated SMS text messages to mobile telephones without first obtaining consent. Defendant has violated, and continues to violate, the TCPA and its regulations by sending automated SMS text messages to cellular telephone subscribers who have not expressly consented to receiving such messages.
4. In a Report and Order adopted on June 26, 2003, the Federal Communications Commission (“FCC”) held that:
“[i]f the call is intended to offer property, goods, or services for sale either during the call, or in the future (such as in response to a message that provides a toll-free number), that call is an advertisement. Similarly, a message that seeks to help sell or market a business’ products, constitutes an advertisement if the individuals are encouraged to purchase, rent or invest in property, goods, or services during or after the call. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 2003 WL 21517853, 18 F.C.C.R. 14014 at¶ 142 (FCC July 3, 2003).
The FCC then went on to hold that:
[U]nder the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number. Both the statute and our rules prohibit these calls, with limited exceptions, ‘to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.’ This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service. Congress found that automated or prerecorded telephone calls were a greater nuisance and invasion of privacy than live solicitation calls. Moreover, such calls can be costly and inconvenient. The Commission has long recognized, and the record in this proceeding supports the same conclusion, that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used. Wireless subscribers who purchase a large ‘bucket’ of minutes at a fixed rate nevertheless are charged for those minutes, and for any minutes that exceed the ‘bucket’ allowance. This ‘bucket’ could be exceeded more quickly if consumers receive numerous unwanted telemarketing calls. Moreover, as several commenters point out, telemarketers have no way to determine how consumers are charged for their wireless service.”
5. By sending such SMS marketing text messages to consumers, Defendant has caused consumers actual harm, including the aggravation and privacy invasion that accompanies receiving unsolicited text messages. In particular, consumers are damaged by having to pay cellular telephone service providers for the receipt of Defendant’s Complaint for Damages Pursuant to the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. unsolicited text messages and must endure the aggravation and nuisance that accompanies the receipt of unwanted text messages.
6. Plaintiff brings this suit under the TCPA on behalf of himself and a class of similarly situated persons. Plaintiff and the class seek an award of statutory damages, together with costs and reasonable attorney’s fees.
12. In recent years, marketers, who often felt stymied by federal or state laws limiting solicitations, have looked to alternative technologies through which to send bulk solicitations cheaply. One of the newest types of bulk marketing is through SMS. SMS allows marketers to send (and receive) short messages, usually limited to 160 characters, to (and from) cellular telephone subscriber’s cellular telephone devices.
13. An SMS message is directed to a wireless device through use of the device’s assigned telephone number. The message sender’s telephone number is preserved as part of the recipient’s message, so that the recipient knows, at least by number, who is sending the message. When an SMS message is successful, the recipient’s cellular phone typically rings, alerting him or her that the phone is receiving a text message. As cellular telephones are inherently mobile and are frequently carried on their owner’s person, calls to cellular telephones, including SMS messages, may be received by the called party virtually anywhere worldwide.
14. The use of SMS messaging (known colloquially as “text messaging”) has become ever present in the United States.
15. Marketers have seized on this billion-dollar industry as a vast marketing and exposure opportunity. Using SMS technology, companies and individuals can now extend the promotional reach of their products, brands, services and ideas to potentially millions of consumers, almost instantaneously. And, with SMS technology, marketers know with near certainty that their message is received.
16. Many companies, including Defendant, use automated computer equipment to send bulk SMS text messages to cellular telephone subscribers using a unique five or six digit number called “short code,” as opposed to using an ordinary ten-digit telephone number. U.S. companies obtain short code numbers form an independent agency, Neustar, Inc. (“Neustar”), which manages and assigns U.S. short code numbers in order to run automated mobile text messaging applications.
17. Unlike conventional solicitations, SMS text messages actually cost the recipients of the marketing messages money. Cellular telephone users must pay their respective wireless service providers to receive text messages, either for each individual text message or as part of a specified (and often limited) messaging plan, regardless of whether or not the incoming message is authorized.
18. By sending such SMS text messages to consumers, Defendant has caused consumers actual harm, including the aggravation and privacy invasion that accompanies receiving unsolicited text messages. Moreover, consumers are damaged by having to pay cellular telephone service providers for the receipt of Defendant’s unsolicited text messages.
19. Pursuant to the TCPA, a company must obtain consent before sending automated SMS text messages to a cellular telephone. See 47 U.S.C. § 227, et seq. In many instances, Defendant’s SMS text messages sent to consumers’ cellular telephones violate the TCPA because the telephone owner did not expressly consent to receiving the SMS text messages.
20. Defendant’s website submission page (see attached as Exhibit “1”), which also serves as Defendant’s home page, prominently advertised Defendant’s services and solicited visitors to contact Defendant for the purpose of “Analyzing your needs, tailoring your solution.”
21. Defendant’s website submission page contained exclusively marketing materials and invited potential customers to contact Defendant in order to “Get your no obligation process started today,” “Talk to us about your situation 24/7” and “Ask About Our Money Back Guarantee.”
22. The purpose of Defendant’s website submission page is to solicit potential clients and encourage potential clients to retain Defendant for the services described on the website submission page.
23. Nowhere on Defendant’s website submission page, www.rescueonefinancial.com, are there any customer service elements that would be utilized by existing customers such as an existing client login account or customer service contact information. The sole purpose of the website submission page that Plaintiff visited was for the marketing of Defendant’s services and to generate sales for Defendant.
CONTACT WITH PLAINTIFF
24. On or after May, 2014, Plaintiff contacted Defendant for a consultation via its online website submission page.
25. At no time did Plaintiff speak with any of Defendant’s representatives nor did Plaintiff submit a loan application or personal financial materials of any kind to Defendant. The only information Plaintiff provided to Defendant was his first and last name, cellular telephone number, and email address.
26. On after June 11, 2014, Plaintiff received at least two text messages from Defendant as follows:
Text No. 1: oval, please check ur spam/junk folders if u don’t see it,my phone # is 949 274-8346. Thanks!
Text No. 2: Hello,this is Marii from Rescue 1 in regards to ur recent loan app.What is the best time to speak? I also sent an email with the loan info needed for appr(.)
27. On June 14, 2014, Plaintiff received at least one text messages from Defendant as follows:
Text No. 3: This is David Miller with Rescue 1 Financial are you still interested into following up on your online loan inquiry?
28. The SMS short code number for all of the unauthorized text messages that Plaintiff received was 244-13.
29. The content of the text messages Plaintiff received was generic, impersonal and commercial in nature, indicating that they were sent to a group of consumers en masse.
30. The first text message received by Plaintiff in which “Marii” inquired about his “recent loan application” was disingenuous due to the fact that Plaintiff had not at any time submitted a loan application. Additionally, the text from “Marii” did not address Plaintiff by his name, which indicates that a template was used by Defendant. The text from “Marii” was purely commercial in nature and the purpose of the text message was to promote Defendant’s goods and services to Plaintiff.
31. Defendant did not at any time request or obtain Plaintiff’s prior express consent to receive unsolicited text messages utilizing a prerecorded, artificial voice or ATDS, pursuant to 47 U.S.C. § 227(b)(1)(A).
32. The telephone number that Defendant, or its agents, texted was assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls pursuant to 47 U.S.C. § 227 (b)(1).
33. The last four digits of Plaintiff’s cellular telephone numbers are “9844.”
34. The text messages from Defendant, or its agents, constituted calls that were not for emergency purposes as defined by 47 U.S.C. §227 (b)(1)(A)(i).
35. Defendant sent these text messages via an automatic telephone dialing system (“ATDS”) as defined by 47 U.S.C. § 227(a)(1).
36. This ATDS utilized by Defendant has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. 1
37. This ATDS utilized by Defendant also has the capacity to automatically dial telephone numbers from a list or database of telephone numbers without human intervention.
38. The text messages from Defendant also constitute artificial or prerecorded voice calls pursuant to 47 U.S.C. §227(a)(1).
39. The text messages sent utilizing an ATDS and/or an artificial or prerecorded voice alleged in paragraphs 26 and 27 from Defendant, or its agents, to Plaintiff’s cellular telephone were sent without Plaintiff’s “prior express consent.”
40. Plaintiff alleges that each text message from Defendant violated 47 U.S.C. § 227(b)
41. Upon reasonable investigation into the Defendant’s calling patterns, Plaintiff alleges upon information and belief that the Defendant, individually or through its agents, placed or directed the mass placement of text messages to cell phones nationwide four years prior to the date this complaint was filed. – Source
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