Navy-Recruitment Texts Face High Court Review

     (CN) – The U.S. Supreme Court agreed Monday to look at a case where consumers received unsolicited text messages on their cellphones to recruit them to the Navy.
     Lead plaintiff Jose Gomez filed the class action after receiving a text message on May 11, 2006, stating: “Destined for something big? Do it in the Navy. Get a career. An education. And a chance to serve a greater cause. For a FREE Navy video call [number].”
     The Navy, which is not a defendant had hired a marketing consultant, Campbell-Ewald Co., to develop and execute a multimedia recruiting campaign, targeting people between the ages of 18 and 24 who had consented to solicitation.
     Campbell-Ewald in turn hired Mindmatics to generate a list of phone numbers fitting these conditions and transmit the messages.
     Though a Navy representative testified that the Navy did not authorize messages to be sent to people who had not opted in, Gomez, well outside of the specified age range at 40 years old, said he did not consent to receiving the text message.
     California-based U.S. District Judge Dolly Gee nevertheless found in favor of Campbell-Ewald, holding that the company was immune because it was working at the Navy’s direction to implement the text-message recruitment campaign.
     The 9th Circuit vacated that decision last year, however, finding that Gee applied the standard for liability under the wrong precedent, the 1940 Supreme Court decision in Yearsley v. W.A. Ross Construction Co.
     In Yearsley, the Supreme Court held a contractor immune from suit over the unconstitutional taking of property because its work was done in accordance with express congressional directive and because the government had impliedly promised to compensate the plaintiffs.
     The 9th Circuit deemed such reasoning irrelevant to Gomez’s case, however, because his claims do not implicate a constitutional promise to compensate injured plaintiffs.
     “Instead, Congress has expressly created a federal cause of action affording individuals like Gomez standing to seek compensation for violations of the TCPA. In the 70-year history of the Yearsley doctrine, it has apparently never been invoked to preclude litigation of a dispute like the one before us,” Judge Fortunato Benavides wrote for the court. “This court, in particular, has rarely allowed use of the defense, and only in the context of property damage resulting from public works projects.”
     Benavides also rejected Campbell-Ewald’s argument that more recent cases provide the company with immunity, as they were not applicable to Gomez’s case.
     Campbell-Ewald had argued for a new immunity for government-service contractors, but the 9th Circuit declined, noting that “immunity must be extended with the utmost care.”
     “The record contains sufficient evidence that the text messages were contrary to the Navy’s policy permitting texts only to persons who had opted in to receive them. Consequently, we decline the invitation to craft a new immunity doctrine or extend an existing one,” Benavides wrote.
     The 9th Circuit also rejected Campbell-Ewald’s argument that it cannot be held liable for Telephone Consumer Protection Act (TCPA) violations because it outsourced the sending of the text messages to Mindmatics.
     Several federal courts have concluded that the TCPA imposes vicarious liability between a defendant and a third-party caller, and the Federal Communications Commission recognizes vicarious liability for violations committed by third-party telemarketers, according to the ruling.
     “The present case affords an opportunity to clarify that a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller,” Benavides wrote.
     As to Campbell-Ewald’s claim that the federal statute restricting unsolicited text messaging is unconstitutional, the court saw no evidence that the government’s interest in privacy ends at home.
     Furthermore, “the nature of cell phones renders the restriction of unsolicited text messaging all the more necessary to ensure that privacy,” Benavides wrote. “After all, it seems safe to assume that most cellular users have their phones with them when they are at home. Campbell-Ewald itself notes that in many households a cell phone is the home phone.”
     Campbell-Ewald additionally failed to show that the military-recruiting messages were a form of government speech, afforded greater protection by the First Amendment.
     Benavides called the government-speech doctrine “simply immaterial to the present dispute, in which the plaintiff is not advocating for viewpoint neutrality, but is instead challenging the regulation of a particular means of communication.”
     Following its custom, the Supreme Court issued no comment on the case in granting Campbell-Ewald a writ of certiorari Monday.

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