On February 28, 2024, Motive Technologies Inc., formerly known as Keep Truckin (“Defendant”), was sued in the United States District Court for the Northern District of California for allegedly delivering prerecorded trucking-related marketing calls without first obtaining prior express written consent from recipients. As our readers are aware, these allegations, if they had been proven true, would mean that Defendant violated the prerecorded voice compliance provisions of the Telephone Consumer Protection Act (“TCPA”). The TCPA’s prerecorded voice provisions dictate that calls to the cellular telephones of consumers, which include prerecorded messages, may only be initiated after first obtaining consumer prior express written consent. Trucking industry marketing companies that do not comply with TCPA requirements risk being named in a private right of action for statutory damages.
In Bond v. Motive Technologies Inc., Plaintiff alleged that she received multiple prerecorded calls from Defendant advertising its trucking logistics services. Plaintiff alleged that he had never consented to receive such calls from Defendant. The matter was eventually resolved out of Court, but by then, Defendant had expended a significant amount of time and resources addressing Plaintiff’s class action lawsuit. In addition to prerecorded voice provisions, companies engaged in the trucking industry marketing space must also familiarize themselves with other consumer marketing regulations. Among other risks, violative marketing communications are also actionable under the TCPA’s Do-Not-Call (“DNC”) provisions and the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act.
An Overview of the TCPA’s DNC Compliance Provisions
If a consumer’s telephone number is registered on the National DNC Registry, trucking marketing companies are generally prohibited from contacting the consumer. Under the TCPA, telemarketers are liable for statutory damages in the amount of $500 per call (excluding the first call). If the court finds that the violation of the TCPA’s DNC provisions was willful, it may award the recipient of the unwanted call up to $1,500 per call. The telemarketer can also be fined up to $43,792 per violation of the DNC provisions of the Telemarketing Sales Rule (“TSR”).
These protections are generally afforded to all consumers that register their telephone numbers on the federal DNC list. However, the above penalties do not apply to trucking companies who have an established business relationship with the call recipient.
Per statute, a company has an established business relationship with a consumer if: (a) the consumer has entered into a transaction with the seller within the previous 18 months, or (b) the consumer inquired about the seller’s goods/services within the previous three months. Notwithstanding the foregoing, a consumer may revoke his/her consent to receiving telemarketing communications from a given company at any time.
What is the CAN-SPAM Act?
The CAN-SPAM Act (“the Act”), passed in 2003, established nationwide regulations for the sending of commercial email messages. Among other requirements, the law requires that marketing emails: 1) accurately identify the person or business who initiated the messages; 2) do not use deceptive subject lines; 3) clearly and conspicuously disclose that the messages are advertisements; and 4) clearly and conspicuously disclose how consumers can opt out of the receipt of future email marketing.
Trucking companies that engage in email marketing face significant penalties for violations of the Act. Governmental enforcement actions may result in penalties of up to $51,744 per email. In addition, various state statutes allow for private rights of action for some of the same alleged conduct.
Trucking Companies Must Prioritize Marketing Compliance
As can be seen from Bond, trucking companies that deliver unsolicited prerecorded calls open themselves up to potential lawsuits that may result in costly penalties. It is important to note that laws protecting consumers from unwanted messages have been enacted for almost all forms of marketing communications. At a minimum, trucking companies must ensure compliance with the TCPA’s DNC compliance provisions and the CAN-SPAM Act.
Navigating these nuanced laws to ensure compliance can be quite daunting. As such, companies should retain experienced legal counsel to assist with marketing law compliance. The attorneys at Klein Moynihan Turco have decades of experience in: 1) providing regulatory compliance advice; and 2) defending marketing-related lawsuits.
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