And You Thought Your Teenager’s Cell Phone Bill Was High…NFL Team’s Texts Cost $3 Million

shutterstock_113638828[1]Fans everywhere like to complain about their team’s picks in the NFL draft. Maybe their team drafted a quarterback instead of a cornerback, or maybe it fell for that highly overrated prospect. Most such complaints stay safely in the realm of sports radio or bar talk, but the Buffalo Bills recently endured a major legal headache after one fan sued the team in court over alleged Telephone Communications Protection Act (TCPA) violations. Despite seemingly innocuous infractions, settling the suit cost the Bills more than $3 million. Companies hoping to avoid the same fate should carefully choose the language of customer agreements and ensure communications with customers fit within these agreements.

The case stemmed from the Bills’ fan alert program, through which the team texts game updates and breaking news to fans’ mobile phones. The text program promises three to five text messages per week, but Bills’ fan and program participant Jerry Wojchik alleged he received six or seven texts in some weeks. He filed suit in the Middle District of Florida on October 25, 2012, as a class action on behalf of all affected fans.

The TCPA (47 USC § 227, et seq.) regulates marketing calls and electronic communications. Among other FCC rules, the TCPA bans the use of text messages unless a user gives consent or the message regards an emergency. According to FCC rulings, the burden is on the defendant to demonstrate express consent within the meaning of the statute.

The Bills and Wojchik entered a proposed settlement deal on January 15, 2014. The deal gives prepaid debit cards to affected fans, redeemable at the Bills official merchandise store. The cards will be worth $57.50, $65.00, or $75.00, depending on the affected class member’s tier. The court gave the deal preliminary approval on April 17, calling it fair, adequate, and reasonable. The settlement includes the following costs to the Bills: almost $2.5 million in gift cards; $5,000 to Wojchik, as the named lead plaintiff; more than half a million dollars attorneys’ fees; and administrative costs.

The Bills are not the first professional sports team to be sued under the TCPA for electronic communications. A fan waged a similar TCPA action against the Pittsburgh Penguins in 2012. The language of the approval again proved important. There, the fan-plaintiff alleged that the Penguins promised no more than three texts per week. However, the team argued that in addition to the “maximum of 3 messages a week” language, the terms also included an asterisked footnote that “clearly state[d] that alerts go out after every game.” Judge Consuelo B. Marshall of the Central District of California dismissed the case, favoring the Penguins’ interpretation of the contract.

These cases demonstrate that companies seeking to send promotional messages to clients should draft the permission terms carefully and stick to them once drafted. Courts considering the issue have applied the terms literally, and even loyal sports fans may challenge seemingly innocuous violations in court. Now about that quarterback…

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In the new digital world, individuals and businesses are almost entirely dependent on computer technology and electronic communications to function on a daily basis. Although the power of modern technology is a source of opportunity and inspiration—it also poses huge challenges, from protecting privacy and securing proprietary data to adhering to fast-changing statutory and regulatory requirements. The Cyber Law Monitor blog covers privacy, data security, technology, and cyber space. It tracks major legal and policy developments and provides analysis of current events.
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