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.
Similar Blog Posts:
The Telemarketer’s Guide To Do-Not-Call
Compliance
TCPA Text Class Action Against Wolf of Wall Street
Dismissed
Duguid v. Facebook, Footnote 7: TCPA Landscape
Significantly Altered by Ninth Circuit Decision
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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