Unsolicited Telemarketing Text Messages Spark TCPA Claim Against Car Dealership

A California auto dealership is accused of sending unsolicited telemarketing text messages to a Broward County, Fla. resident in a recent TCPA class action lawsuit.

Plaintiff Mario Guerra alleges defendant Newport Beach Automotive Group LLC “engages in unsolicited marketing with no regard for privacy rights of the recipients of those messages.”

Case Background

According to the complaint, Guerra began receiving unsolicited telemarketing messages via SMS (text messaging) on or around September 4. Messages were lengthy and elaborate, and included photos. Guerra believes he was not the only one in Florida to receive such unsolicited text messages, which is why he seeks class action status.

Guerra further states that at no time did he consent to receive the spam text messages in question. Because the messages were of an “impersonal and generic nature” and originated from what is known as a “short code” (a five or six-digit number used with MMS and SMS systems and mobile networks), he has reason to believe that they originated from an automatic telephone dialing system (ATDS). The complaint says that the defendant used a messaging platform that enable them to send out hundreds, or even thousands of advertising messages automatically, without any human input.

What is an ATDS?

Sometimes known simply as an “autodialer,” this particular technology has existed for almost 30 years – and was one of the catalysts for passage of the Telephone Consumer Protection Act in 1991. Today’s autodialers can store, generate and dial thousands of numbers in rapid sequence, using recorded voice greetings (“robocalls”) that can even be delivered straight to voice mail (“ringless voicemail”), or send text messages. This can be done at an extremely low cost, according to ringdna.com, and autodialers can even send unsolicited text messages.

About the TCPA

The TCPA was passed in response to the growing use and abuse of autodialer technology. This law essentially requires a business to have an established relationship with a prospect as well as his or her permission before sending commercial messages. The TCPA has been updated and revised many times over the years in response to changing technologies. Those who violate the TCPA can be liable for damage awards of up to $1,500 per incident.

The law has been challenged on numerous occasions on constitutional grounds, although these have not been successful until recently. In May of 2019, a number of political organizations representing both major parties filed a lawsuit with the Ninth Circuit, claiming that the prohibition on political “robocalls” is a violation of the First Amendment guarantee of freedom of speech. A Montana law restricting political messaging was struck down by the Ninth Circuit in late September. On the other hand, a U.S. District Court in Florida recently upheld the constitutionality of the TCPA in a case involving unsolicited calls seeking participation in surveys.

So far, the courts have stood with consumers on the TCPA as it applies to unsolicited text messages from car dealers and other businesses.

Can’t Unsolicited Telemarketing Text Messages Simply be Deleted?

Aside from the issue of privacy, many cell phone subscribers have limited plans, and incur charges for incoming MMS or SMS messages. It is unreasonable to expect anyone to pay to have unwanted ads delivered to them. Deleting them also robs the recipient of his/her valuable time; in his complaint, Guerra states that he wasted 10 minutes trying to find out who the defendant was and how his number was obtained and lost another 5 minutes deleting the unsolicited telemarketing text messages.

The Car Dealership TCPA Class Action Lawsuit is Case 0:19-cv-62343-JEM, U.S. District Court for the Southern District of Florida.

Join a Free Car Dealership TCPA Violations Class Action Lawsuit Investigation

You may be eligible to join this lawsuit investigation into car dealership TCPA violations under the following circumstances:

• You did NOT provide express permission in writing to the car dealership to receive the calls or messages.
  You did NOT purchase a vehicle from the dealership that is contacting you.

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