Why would a company as big and as well-established as the Coca-Cola Company use illegal telemarketing methods to gain customers? Still, the complaint for this class action alleges that the company did just that, sending text messages to consumer cell phones that violate the Telephone Consumer Protection Act (TCPA).
Congress passed the TCPA to try to stem the flood of telemarketing to consumers. The law aimed to give consumers more control over which companies were allowed to make telemarketing calls to them.
Of particular concern were consumer cell phones, because cell phone owners pay for incoming as well as outgoing calls. This makes telemarketing an expense as well as a nuisance.
Under the TCPA, it is unlawful for a telemarketer to place a call to a consumer cell phone using and automatic dialing system or an artificial or prerecorded voice unless the telemarketers has the consumers’ prior express written consent to receive such calls. The term “calls” includes text messages as well as regular voice calls or voicemails.
In this case, plaintiff Roxanne Gant received a string of messages from Coca-Cola on her cell phone, beginning September 27, 2018.
The first message began, “Get game day ready with Coke and Walgreens. Unlock your chance to win.” This was followed by a link and other information.
The second, which arrived in October, began, “Thrills and Chills. Try Fanta at Walgreens to unlock a free movie stream.”
A message February 13 began, “Help us raise $1 million for Boys & Girls Clubs with Coca-Cola(R) and Family Dollar.” That same day, Gant received two other messages and decided to try to opt out of receiving further messages. She texted back “STOP” as directed by the message, and received the following acknowledgement: “The Coca-Cola Company: Sorry to see you go. You will not receive future messages from The Coca-Cola Company…”
Unfortunately, she received four more messages even after that.
Gant claims that she had not at any time given the company her express written consent to receive such messages. Even if she had, the complaint says, she revoked that consent when she texted the company back to opt out of future messages. Also, her number has been on the National Do Not Call Registry since March 2015.
The complaint claims that the generic and impersonal nature of the message indicates that it was sent by an automatic dialing system as part of a telemarketing campaign.
Three classes have been proposed for this action.
The No Consent Class is all persons who, from September 19, 2015 on, (a) were sent a text message by or on behalf of Coca-Cola, (b) using an automatic dialing system, (c) for telemarketing purposes, (d) from whom Coca-Cola claims either that it did not receive prior express written consent or that it received such consent in the same manner as it received it from the plaintiff in this case.
There is also a Revocation Class, for those who were sent such messages after they asked the company to stop sending them, and a Do Not Call Registry Class, for those whose numbers were on the registry and who received more than one call in a twelve-month period