According to an article in Law 360 (link below), a Florida man has initiated a class action lawsuit against Tracfone Wireless, accusing the company of violating the Telephone Consumer Protection Act by sending spam advertising texts using an autodialer.
Brian Gallant accuses Tracfone of sending a text, advertising the company’s specials and promoting its business on Dec. 24. Gallant has been registered on the do not call list since November 2017, according to the complaint.
Gallant also says Tracfone used a deceptive phone number to fool recipients into believing that the message was only sent to one individual.
The number used by defendant … is… a standard 10-digit phone number that enabled defendant to send SMS text messages en masse, while deceiving recipients into believing that the message was personalized and sent from a telephone number operated by an individual,
the complaint says.
Gallant is seeking an injunction against Trac to prevent it from using an automatic telephone dialing system to contact recipients without their consent as well as up to $500 in damages for each person in the class, defined as anyone who received an advertising text message from Tracfone between February 2015 and Wednesday.
The FCC has been seeking suggestions since May on how to redefine autodialers, two months after the D.C. Circuit ruled that the agency’s guidance on the TCPA could be read to mean that every smartphone is an illegal device for making marketing calls because they could place automatic calls and texts.
In June, some Senators urged the commission to maintain strong consumer protection laws that discourage robocalling and provide a robust means for consumers to withdraw their consent to be called, saying that, without intervention, invasive robocalls could plague consumers.
Recently, retailers and telecoms have told the FCC it should narrow its definition of an automatic telephone dialing system so that companies have more room to call consumers without facing potential class actions.
In filings posted by the FCC on Oct. 24, the Retail Industry Leaders Association and Incompas, an organization that represents telecom companies, told the commission it should reject the broad definition of autodialer reached in the Ninth Circuit’s Marks v. Crunch San Diego decision and return to a narrower one that better complies with the TCPA.
The case is Brian Gallant v. Tracfone Wireless Inc., case number 1:19-cv-20580, in the U.S. District Court for the Southern District of Florida.
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