A federal court judge has refused to dismiss text-message-abuse charges against JCPenney (NYSE:JCP), ruling that the shopper who is suing the chain made a decent-enough case that the chain had violated the Telephone Consumer Protection Act.
The case involves a Pennsylvania shopper—named Tracy Maier—who gave her mobile number to a JCPenney loyalty/CRM site on June 16, 2012, "and agreed to be contacted by JCPenney at that number." But unlike other recent cases involving retailers including Papa Johns and Walmart, the initial arguments did not involve whether the shopper's consent was knowingly given, nor whether the consent also permitted texts.
In the JCPenney motion to dismiss, the arguments all involved how JCPenney caused the text messages to be distributed: whether humans did them or whether some kind of automatic dialer was used. The Telephone Consumer Protection specifies such devices as being prohibited unless being used for emergency purposes (such as police evacuating a community or broadcasting a description of an escaped killer).
The court looked at the wording of the text message received by the Pennsylvania shopper, looking for hints of personalization. The message read: "Reply YES now to be first to know about our best prices, special store events & new things happening at jcp. Dtls http://bit.ly/yALZuq. Msg&DataRatesApply."
Given that technology today gives many systems the ability to do automatic dialing, the judge ruled that any system used to make these texts that could perform automatic dialing would be a violation. The language of the Telephone Consumer Protection Act indicates that an automatic telephone dialing system (ATDS) "need not actually store, produce, or call randomly or sequentially generated telephone numbers. It need only have the capacity to do it. Due to this distinction, the issue is not whether [a defendant] used an ATDS, but whether its equipment had the requisite capacity," wrote U.S. District Judge Irma E. Gonzalez.
- See this Law360 story
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