Car Dealerships Allegedly Violate TCPA With Spam Texts

A recent TCPA class action claims that texts from car dealerships were unsolicited and therefore unlawful.

Case Background

Plaintiff Rick Garcia allegedly received car dealerships’ texts from Net Direct Auto Sales starting in October 2018. On Oct. 9, Garcia reportedly received a text stating that he was enrolled to receive texts from the car dealerships as well as a greeting message stating the following: “Good day Rick, this is Ditto with Net Direct Autos. It’s been quite some time since we’ve heard from you! Are you still in the market for a lifted vehicle?”

Garcia claims that he never consented to receive text messages from car dealerships used to promote their business. He also claims that Direct Net Auto Sales used an automatic dialing system to send these telemarketing spam texts to large numbers of consumers. Garcia further alleges that to make it worse, the car dealership uses a long code to mimic a phone number and deceive consumers into believing that the message was personalized to them.

“Defendant’s unsolicited text messages caused Plaintiff actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” the spam text class action claims. “Defendant’s text messages also inconvenienced Plaintiff and caused disruption to his daily life.”

The Cause of Action and the Remedy

Garcia argues that these text messages violate the Telephone Consumer Protection Act (TCPA) and seeks compensation from Net Direct Auto Sales under the federal law.

In 1991, Congress passed TCPA and established the Federal Communications Commission (FCC) to oversee the law and its enforcement. Even then, Congress knew that robocalls and other harassing telemarketing communications were a huge hassle for consumers and aimed to protect consumers from invasions of privacy.

Since the TCPA was passed, it has been amended and added to so that the law remains modern and relevant. In 2003, the FCC partnered with the Federal Trade Commission (FTC) to create the National Do Not Call Registry, a list to which consumers could add their contact information if they wished for all telemarketers to stop calling them.

In 2012, the FCC made notable revisions to TCPA in order to update protections. First, telemarketers were no longer allowed to call consumers without consent even if they had an established business relationship. Second, all telemarketers were required to obtain prior written consent before robocalling them. Third and finally, all telemarketing communications were required to include an opt out mechanism within the call/fax/text so that consumers could easily stop receiving robocalls and other messages.

How Car Dealerships Get Your Number

If you purchased your vehicle from a dealership and/or had it serviced there, they will have your number. This does not authorize them to call you without your consent; as noted earlier, a prior business relationship with a consumer does not constitute consent.

Another way is plain, dumb luck; some telemarketers use an automatic telephone dialing system (ATDS), a device that can generate thousands of random numbers and call them all at once. With very few exceptions, the use of an ATDS is prohibited under the TCPA.

This also applies to the use of services that do mass-marketing text messaging. Those who send out such communications are required to confirm whether or not the recipients have granted permission to be contacted or have placed their numbers on the National Do Not Call Registry.

It is worth mentioning that the Cellular Telecommunications Industry Association (CTIA) and the Mobile Marketing Association (MMA) have issued their own “best practices” guidelines for car dealerships and other businesses that use mass text messaging in their marketing efforts.

Penalties for Violators

Car dealerships and others who violate the TCPA can be liable for penalties $500 for each violation. If these violations are found to be willful, that penalty can go as high as $1500 per incident. In TCPA class action lawsuits, seven-figure settlements are not unusual.

Holding Alleged Violators Accountable

In his TCPA class action, Garcia seeks to represent a Class of consumers who received a text message from Net Direct Auto Sales within the last four years that was sent using an automatic telephone dialing system, despite the car dealership not having prior express written consent.

The TCPA class action lawsuit seeks actual damages, statutory damages, injunctive relief, court costs, and attorneys’ fees.

The Car Dealership TCPA Class Action Lawsuit is Garcia v. ND Auto Sales LLC d/b/a Net Direct Auto Sales, Case No. 1:19-cv-23018-XXXX, in the U.S District Court for the Southern District of Florida.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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This article is not legal advice. It is presented
for informational purposes only.