Recently a federal appellate court ruled that Taco Bell isn’t responsible for the text messages that a marketing agency blasted out to consumers. The 9th Circuit Court of Appeals upheld a California trial judge’s ruling that the company shouldn’t be responsible for the marketing campaign of an outside agency. In other words, consumers will have a difficult time suing advertisers in the future (as opposed to the agencies that handle their marketing).
The agency in question, called ESW Partners, was hired by a dozen Taco Bell franchise owners in the greater Chicago area. A branch of ESW Partners, called Ipsh (now known as The Marketing Arm), was slated to handle a mobile advertising campaign for the franchise owners. The text message campaign, executed back in 2005, consisted of a promotion of new products including Chicken and Steak Nachos Bell Grande. The text asked for local residents to vote on which variety they preferred.
Because the recipients of the texts did not opt-in to receive these text messages, such an act could be considered illegal under the federal Telephone Consumer Protection Act. The plaintiff Tracie Thomas sued to that effect: she stated that this campaign violated the text-spam law, further claiming that Taco Bell used automatic telephone dialing systems to send messages to mobiles without the consent of the consumer.
The truth of the matter: the judge and the appellate court ruled that Taco Bell Corporation had nothing to do with the affair. In a statement during the appellate court case, Taco Bell’s representatives argued that it “had no role in the decision to distribute the message by way of a blast text or that it ever reviewed any proposed text message, or even knew about the outgoing text message component of the local promotion.”
There is no word on whether the agency was sued by Thomas, but all marketers should consider this a wake-up call.
Mobile marketers must carefully examine their campaigns. Give attention to the laws regarding text message marketing campaigns. Make certain that every consumer has opted-in, providing permission for text ads (through a web form, for example). Exacting language must be provided for the consumer, outlining precisely what they are signing up for. Aid should be provided regarding the terms and privacy. And, as always, consumers must be allowed to opt-out at any time.
Be a smart mobile marketer: always follow the best practices for text message and SMS marketing, and protect yourself from future lawsuits. For more information on regulations and best practices, visit http://www.fcc.gov.