There is a pending class action against Papa John’s pizza and some of its franchisees for sending unsolicited text advertising messages. The case involves alleged violations of the federal Telephone Consumer Protection Act (“TCPA”) based on texts sent to customers through an advertising program that was offered and run by a third-party marketer, OnTime4U (“OnTime”). The pizzeria’s point of sale system stored telephone numbers of customers who ordered and purchased pizzas. It is a common practice for take-out oriented restaurants such as pizzerias, delis and Chinese take-out to take telephones numbers for telephone orders. Creative marketing people found a way to use the data to reach likely customers with text advertisements offering discount codes and soliciting the purchase of Papa John’s products. While e-mails used in this manner may be acceptable, telephone texting is not.
If you are sued for an advertising violation, check your insurance policies for potential coverage. Some Commercial General Liability policies typically provide coverage for certain “personal and advertising injury” offenses, including the cost of defense.
There are two important lessons here:
- Having a telephone number does not give the right to use its for purposes other than intended by the person at the time the telephone number was provided. Know the rules about text messaging and any form of unsolicited telephone contact. The TCPA prohibits making calls to any cellular telephone number using an automatic telephone dialing system, with only minor exceptions (emergencies and calls made with the customer’s express prior consent).
- Be wary of legal advice from third-party vendors, particularly those who stand to profit from your business. It isn’t true just because it was on the internet.
When in doubt, consult with your attorney. The cost to prevent a problem is small compared to the cost to get out once you are in trouble.