Why would Walmart violate the Telephone Consumer Protection Act (TCPA)? Not, certainly, because people are unfamiliar with it. The complaint for this class action claims that it had enrolled consumers in its prescription message program—even when the consumer was not getting prescriptions from the company.
The class for this action is all persons in the US (a) to whose cell phone number (b) a text message was sent by Walmart or its agents (c) via an automatic telephone dialing system or an artificial or prerecorded voice system, (d) without the persons’ consent, (e) between May 29, 2019 and the filing of Final Approval in this case.
Congress passed the TCPA to stop businesses from harassing consumers with unwanted calls. With the increased availability of automatic dialing systems and prerecorded messaging equipment, the volume of telemarketing calls received by consumers had soared. Congress intended to give consumers a measure of control over who was and wasn’t allowed to call them.
Two particular aspects of the law are involved in this case. First, a National Do Not Call Registry was established where consumers could record their numbers to opt out of receiving any telemarketing calls.
Second, the was a specific prohibition relating to calls to cell phones, because cell phone owners pay for incoming as well as outgoing calls. This makes telemarketing an expense to the consumer as well as a nuisance. Businesses may not direct calls to consumer cell phones via automatic dialing systems or artificial or prerecorded voices unless they have the consumers’ prior express written consent to receive them.
Calls forbidden by this law include regular voice calls, voicemail, and text messages.
In this case, plaintiff Kevin Yashtinsky received two text messages to his cell phone from Walmart on April 10, 2019.
The first said, “WalmartRX—1of2—REPLY NEEDED. To begin receiving automated messages on your prescriptions, please reply YES. To decline reply STOP[.]”
The second said, “WalmartRX—2of2—Terms & Conditions at Walmart.com/alerterms Msg & data rates may apply. Reply HELP for help, STOP to unenroll.”
The complaint says Yashtinsky is not a customer of Walmart Pharmacy and has never gotten a prescription from it. The presumption of Walmart’s having enrolled him without his permission and requiring that he take some kind of action to unenroll himself must have been particularly annoying.
Yashtinsky’s number has been on the Do Not Call Registry since 2013.
The complaint alleges both negligent and willful violations of the TCPA.