Does Two-Factor Authentication Violate the TCPA?–Duguid v. Facebook

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Plaintiff sued Facebook alleging TCPA claims on behalf of a putative class. Facebook sends text messages when someone logs in to their account via a new or unrecognized device. Plaintiff was a non-Facebook user who received these messages. Unfortunately, despite his efforts to get Facebook to stop sending such messages, including responding to the messages with opt-out requests, and contacting Facebook through other means, the messages did not stop.

The key question is whether plaintiff adequately alleges use of an “automatic telephone dialing system” (ATDS). The court says it’s often difficult for plaintiff to make specific allegations about the use of ATDSs, because the plaintiff would not have any information regarding the specific systems utilized by a TCPA defendant. Some courts give plaintiffs leeway in satisfying their pleading obligation, but courts are slightly more permissive when the allegations suggest the sending of mass texts, in contrast to what plaintiff alleged here. Where a plaintiff’s allegations suggest more “direct targeting,” as plaintiff did here, courts often find insufficient an unsupported pleading that an ATDS was used. Plaintiff tried to rely on a 2003 FCC order that the capacity to produce or store random or sequential numbers is not a necessary feature of an ATDS, but the court rejects this argument.

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The TCPA is a strict statute that many companies have paid for running afoul of. As Eric notes below, the messages here are useful, and can hardly be characterized as marketing messages. That did not stop plaintiff from suing. Plaintiffs have gone so far as to sue over confirmatory opt-out messages, but as the court notes here, the majority of courts find those are not actionable.

Drafters sought to define the universe of actionable texts by reference to the equipment used to send it, but that definition turned out to be clunky at best. Courts have recently gone back and forth at the pleading stage on the topic of whether a plaintiff adequately alleges the use of an ATDS, and this is the most recent example.

Eric’s Comment: This case never mentions two-factor authentication, but that’s the clear implication of the case. Facebook’s text message sought to increase the security of Facebook accounts by sending a login notice to a physical item–the cellphone–presumably in the accountholder’s possession. (The fact that the notification got misdirected in this case may raise other issues about the efficacy of Facebook’s implementation). If the TCPA makes it illegal to send those kinds of security notices, it could undermine some of the most widely used two-factor authentication techniques. Fortunately, the court rejects the effort; unfortunately, the TCPA’s poor drafting and massive footprint in the mobile world means we probably haven’t heard the last word on this topic. So I see this as an indication of how an overreaching sloppy attempt to protect “privacy” like the TCPA may ultimately hamper much-needed and socially beneficial security measures.

Case citation: Duguid v. Facebook, 2016 WL 1169365 (N.D. Cal. Mar. 24, 2016). The complaint.

Related posts:

TCPA Claim Against Non-Sender Fails

Group Text Services Grapple with TCPA Class Actions

Debt Collection Text May Result in Liability under the Telephone Consumer Protection Act — Gutierrez v. Barclays Group

Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawsuit Against Adware Vendor Fails–Halperin v. Text Enhance

Path May Be Liable for Text-Spamming Users’ Contact Lists

Sending a “DTF?” Text Message Supports Restraining Order — Finigan v. Weinberg

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

March 29th 2016 Marketing, spam

YouTube Wins Another Case Over Removing And Relocating User Videos (Forbes Cross-Post)

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Photo credit: RELOCATE word written on wood block // ShutterStock

Photo credit: RELOCATE word written on wood block // ShutterStock

I recently blogged about a lawsuit against YouTube for taking down a user’s video and relocating it to a different URL. Users get upset when their videos are removed-and-relocated because the process strips the video of its view count and any user comments, breaks any inbound links and potentially makes the user look like he or she did something wrong. However, aggrieved YouTube users aren’t finding much success in court, as a recent California appeals court ruling highlighted.

Jan Lewis ran a YouTube channel called “bulbheadmyass”, where she posted videos of her band “Remington Riders.” YouTube deleted her channel in 2012, saying it thought she had spammed other YouTube users in violation of the no-spamming clause in YouTube’s terms of service/TOS. (The actual TOS provision says “You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.” I’m using the euphemism “spam” as a shorthand). YouTube eventually restored Lewis’ account access, which allowed her to restore her videos at new URLs.

The appeals court rejects Lewis’ two primary legal arguments. First, YouTube’s TOS contained a lengthy limitation of liability clause that successfully eliminated Lewis’ claims for any damages:

the limitation of liability clause encompassed Lewis’s claim that YouTube wrongfully failed to include her videos, the number of views of these videos, and the comments on the videos by other YouTube visitors on its Web site….By claiming that YouTube wrongfully deleted her videos, the number of views of the videos, and the comments on the videos, Lewis is claiming that YouTube failed to do as it should by omitting content on its Web site.

Second, Lewis sought to compel YouTube to restore the old URLs, comments and view counts. The court says YouTube’s TOS never promises that:

there is no provision in the Terms of Service that requires YouTube to maintain particular content on the Service or at a particular location on the Service. There is also no provision in the Terms of Service pursuant to which YouTube is obligated to display view counts or comments associated with videos. There is nothing in the Terms of Service even suggesting that YouTube is a storage site for users’ content.

For these reasons, the court dismissed her claim.

While the court’s opinion never uses the term “spam,” it appears that Lewis and other similarly-situated plaintiffs are being caught in what I’ll characterize as YouTube’s anti-spam crackdowns. Ultimately, other YouTube content suppliers and users want YouTube to discourage spammers from overrunning YouTube and undermining the credibility of its systems. It’s a little unclear if YouTube’s anti-spam efforts are over-inclusive and thus inadvertently ensnaring legitimate activity. It’s entirely clear, however, that YouTube won’t be legally liable for its anti-spam initiatives even if it’s being overzealous.

Case citation: Lewis v. YouTube LLC, 2015 WL 9480614 (Cal. App. Ct. Dec. 28, 2015)

January 5th 2016 spam

TCPA Claim Against Non-Sender Fails

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Plaintiffs sued American Eagle Outfitters and Experian, alleging claims under the TCPA for unwanted text messages. American Eagle is the retailer, and Experian provides marketing services. But neither of these entities actually pressed the “send” button. We’ve seen disputes over whether the defendants used an “automatic telephone dialing system” but this particular dispute turned on who actually sent the messages in question.

No direct liability as senders

Plaintiffs implicitly acknowledged Archer, a non-party who had declared bankruptcy, actually sent the messages. The allegations were specific about who did what leading up to the actual sending, but the court notes uses the passive voice for the last step:

1) AEO provides Experian with the campaign request form; 2) AEO deploys to Experian a list of numbers to which texts will be sent (“Campaign Ready File”); 3) Experian sends the information to Archer USA, Inc.’s (“Archer”) texting platform; 4) Experian schedules text messages to be sent; and 5) text messages are sent. [emphasis added]

The text of the statute and cases interpreting it have found that the party who “actually sent the message” can be directly liable.

Plaintiffs argued, citing to the most recent FCC ruling, that a person who does not actually hit send can be so involved in the process that they can be held directly liable. The court disagrees. The FCC’s interpretation is offered in the context of a different part of the statute which uses the word “initiate” rather than “make” (and is applicable to sellers).

No vicarious liability

The court assumes that vicarious liability is cognizable under the TCPA, but says plaintiffs failed to allege any facts regarding the nature of the relationship between Experian and Archer:

Significantly absent from Plaintiffs’ allegations, however, is any factual content regarding the relationship between Experian and Archer. Plaintiffs seem to suggest that the allegations that Experian “had the right to control the sending of the texts” and “in fact controlled and even scheduled the sending of each segment of the texts” are sufficient to plead Experian’s vicarious liability for Archer’s actions. Pls. Opp’n at 12. Indeed, Plaintiffs argue, without support, that “[w]hether Experian Marketing sent the texts via Archer’s messaging platform or whether Archer sent the texts after Experian Marketing directed it to do so is irrelevant to the issue of vicarious liability.” Id. But to plead vicarious liability under the TCPA in accordance with traditional tort principles, Plaintiffs must allege some facts regarding the relationship between an alleged principal and agent (or an alleged agent and sub-agent) and cannot simply allege general control in a vacuum.

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Courts seem to be taking a closer look at TCPA cases. This is a good example of a court taking an unsympathetic view of what looks like a run-of-the-mill TCPA claim. The plaintiffs here are not suing over confirmatory texts or a single text that preceded an opt-out.

This case raises the question of whether the sender, the platform, or the entity advertised should be held liable for unwanted commercial texts. We’ve seen this issue come up in the group text platform and spam/email scenarios, among others.

The court is fairly strict here, and despite the numerous allegations that Experian was the driving force behind the texts, lets it off the hook. The court takes a pretty restrictive view of the path to liability for Experian. While we haven’t seen many rulings delve into the agency issue, the Ninth Circuit issued one from 2014 involving Taco Bell that comes to mind. (“TCPA Claim Against Taco Bell Fails For Lack of Agency”.) And it makes me think this one is appeal-worthy.

Case Citation: Melito v. American Eagle Outfitters, Nos. 14-CV-02440 (VEC), 15-CV-00039 (VEC), 15-CV-02370 (VEC) (S.D.N.Y. Nov. 30, 2015)

Related posts:

Group Text Services Grapple with TCPA Class Actions

Debt Collection Text May Result in Liability under the Telephone Consumer Protection Act — Gutierrez v. Barclays Group

Another Competitive Keyword Advertising Lawsuit Fails–Infogroup v. DatabaseLLC

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Lawsuit Against Adware Vendor Fails–Halperin v. Text Enhance

Path May Be Liable for Text-Spamming Users’ Contact Lists

Sending a “DTF?” Text Message Supports Restraining Order — Finigan v. Weinberg

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Courts Allows Text Spam Class Action Against Voxer, a Cell Phone Walkie-Talkie App — Hickey v. Voxernet

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Text Spam Class Action Against Jiffy Lube Moves Forward – In re Jiffy Lube Int’l, Inc., Text Spam Litigation

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

December 23rd 2015 Marketing, spam

Third Circuit Revives TCPA Case Against Yahoo

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A Yahoo user alleged that he purchased a phone that came with a preassigned telephone number. The previous subscriber of this number apparently set his account so emails sent to his Yahoo account triggered a text message to this phone number (which was now reassigned to plaintiff). Plaintiff allegedly received a staggering 27,000 text messages, and he tried to resolve the issue with Yahoo to no avail. Even having an FCC representative get on a call with a Yahoo customer service representative did not solve the problem.

He filed a lawsuit asserting TCPA claims. (At the statutory damage amount of $500 per message, he would be entitled to a whopping $13 million in damages.) The district court granted summary judgment to Yahoo. Blog post on the district court ruling here: “Yahoo! Scores Significant Win in Email-to-SMS Lawsuit”. The TCPA restricts calls made using equipment that has “the capacity . . . to store or produce . . . numbers to be called, using a random or sequential number generator.” (See Satterfield v. Simon & Schuster.) The Third Circuit addresses two issues on appeal.

First, plaintiff argued that regardless of how the numbers were generated, if the equipment had the ability to dial sequential numbers from a list (no matter how generated), this fit the definition. The Third Circuit did not find this argument convincing, saying that the focus of the statute is on the capacity to generate random or sequential numbers.

Second, the court focused on the system’s “ latent capacity” to make phone calls, and concluded unhelpfully “so long as the equipment is part of a ‘system’ that has the latent ‘capacity’ to place autodialed calls, the statutory definition is satisfied.” Against this definition, the court says Yahoo’s declaration was too conclusory because it failed to explain how exactly Yahoo’s equipment lacked the requisite capacity. The court remands for further consideration of this issue.

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The definition of “autodialer,” which is already unhelpfully broad (and as the court notes, out of touch with current technology and practices), becomes even broader. Equipment that is part of a system that has the “latent capacity” to generate random or sequential numbers could be pretty much any modern device. The court struggles with the definition and, in the end, seems to punt on it. Although unpublished, the decision is worth noting because it means Yahoo has to spend another round litigating the autodialer issue in the trial court. (Yahoo did not seek re-hearing.) I’m curious about the court’s rationale for sending this back, and whether this was more procedurally or substantively motivated.

As the court notes, the FCC’s recently issued ruling [pdf], dealing with a range of TCPA issues, arrived at a mixed result on the auto-dialer issue. It concluded that number generation is the focus, rather than being able to dial from a list of numbers (no matter how generated). This interpretation was somewhat narrow and marketer-friendly. But the fact that it looked to whether the system overall (rather than one piece of equipment) had the theoretical capacity cuts the other way, and makes it that much easier for a plaintiff to allege use of an auto-dialer.

Phone number reassignment is a perennial TCPA problem, and the FCC ruling expressly addressed it, giving callers a one free pass if they don’t have knowledge of reassignment and have reasonable basis to believe they had valid consent. The FCC required consent to be from the “current” subscriber, and placed the burden on the sender to deal with making sure it had consent from the right party. Commissioner Pai sharply dissented on this (and other points), noting it sets up a litigation landmine. Yahoo could not take advantage of this exception likely due to the number of text messages at issue and its failure to stop after the recipient expressly requested, but I thought the FCC’s treatment of the number reassignment issue was also worth noting.

Case citation: Dominguez v. Yahoo, Inc., No. 14-1751 (3d Cir. Oct. 23, 2015)

Related posts:

Recent FCC Order Helps Shopkick Defeat TCPA Claims

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Sixth Circuit Says Informational Fax Isn’t an “Ad”–Sandusky v. Medco

California Anti-Spam Law Doesn’t Require Sender’s Name In The ‘From’ Line or Domain Name

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Path May Be Liable for Text-Spamming Users’ Contact Lists

Yahoo! Scores Significant Win in Email-to-SMS Lawsuit

December 8th 2015 Marketing, spam

Court Rejects TCPA Claim on the Basis of Implied Consent

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Plaintiff sued on behalf of a putative class, alleging that he received marketing messages from Five Stars Loyalty that violated his rights under the TCPA.

Plaintiff had lunch at a Flame Broiler restaurant and asked the cashier about the Five Stars logo he noticed on the window. The cashier asked for plaintiff’s telephone number, swiped a card and handed it to plaintiff. Shortly thereafter, plaintiff received the following “welcome” text message from Five Stars:

Welcome to Five Stars, the rewards program of Flame Broiler. Reply with your email to finish registering and get free pts! Txt STOP to unsubscribe.

The court says that plaintiff consented to receive the message and therefore his claim fails.

The message is not an advertisement: The key question is whether the text message constituted an advertisement, in which case prior written consent is required. If not, consent need not be written and can be implied by circumstances. The court cites to Chesbro v. Best Buy, a Ninth Circuit case holding that a call exhorting plaintiff to redeem Best Buy “Reward Zone” points constitutes an advertisement. (Blog post on the Chesbro case here: “9th Circuit Zings Best Buy Over Robocalls – Chesbro v. Best Buy”.) The court contrasts the message in this case from the one in Chesbro, noting that the message here did not urge plaintiff to redeem any points, or direct him to a location where such points could be redeemed. Rather, the message was just a part of the overall registration process.

Consent can be implied: Given that the message was not an advertisement under the TCPA, consent can be implied, and turning over a telephone number without limiting instructions is sufficient to infer consent. This interpretation of consent is affirmed by the FCC’s most recent order (2015) interpreting the TCPA.

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Retailers have to tread carefully when collecting information from a consumer. (See generally, the California cases dealing with the collection of personal information by retailers.) Nevertheless, it’s an activity retailers continue to engage in, and here, it appears that the plaintiff’s telephone number was sought not as a condition of sale, but in response to a question about a rewards program. As the court notes, this is one of many rulings holding that handing over your phone number without imposing an affirmative restriction equals implied consent to receive a text message. (See also Pinkard v. Wal Mart, a 2012 case dismissing TCPA claims based on implied consent.) That plaintiffs sued over this message is a testament to how risky text messaging is as a marketing channel.

The court’s efforts to distinguish Chesbro is worth noting. The distinction between advertising and non-advertising content comes up often, and the court takes a common sense-based approach here. This issue has come up in the junk fax context as well, as noted in this blog post on Sandusky v. Medco.

Case citation: Daniel v. Five Stars Loyalty, Inc., 15-cv-03546-WHO (N.D. Ca. Nov. 24, 2015)

Related posts:

Recent FCC Order Helps Shopkick Defeat TCPA Claims

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Sixth Circuit Says Informational Fax Isn’t an “Ad”–Sandusky v. Medco

California Anti-Spam Law Doesn’t Require Sender’s Name In The ‘From’ Line or Domain Name

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

Path May Be Liable for Text-Spamming Users’ Contact Lists

Yahoo! Scores Significant Win in Email-to-SMS Lawsuit

December 7th 2015 Marketing, spam

Weekly SEO Recap: AMPlified spam

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Joost's weekly SEO recapThis is a week of quite a bit of newsGoogle pushed a new standard called Accelerated Mobile Pages and an update to prevent hacked sites from ranking in the search results. Let’s dive in:

Accelerated Mobile Pages

The biggest news of the week is Google’s push for a new web standard they’ve developed together with a ton of (mostly European) publishers and some other parties. It’s called Accelerated Mobile Pages (AMP) and it’s supposed to be a new and open web standard.

Compare these two screenshots from the Guardian:

guardian-amp guardian-normal

Left is the AMP version, right the normal HTML version.

I have two problems with it:

  1. It restricts what we can do on the web.
  2. It’s not open at all, but benefits a select group of larger web companies.

Restricting the web

The basic idea of AMP is that they’ve modified HTML to restrict it quite a bit. A lot of the functionality we can offer on web pages today won’t be allowed within AMP pages, which makes making it faster quite easy. Let’s compare this to a race car. If you want to make a race car faster, you give it a faster engine and you strip all the weight. In this weight stripping you also remove things like back seats, air conditioning, etc. AMP is not unlike that. It’s the trimmed down version of a normal web, because Google cares for speed more than for nifty features.

I’ve worked on CSS3 a lot, starting CSS3.info back in 2006. Ironically, AMP removes some of the CSS selectors that were introduced back then. AMP basically brings us back to an internet from before 2000. AMP throws away years of advancement, with the only goal being to make the web faster. I like fast, but I like features more. There’s a reason most of us ride in cars with air conditioning, back seats, GPS etc. We like these features. I can’t see this as an improvement.

Not an open standard

Some of the things we can currently do on the web that you’d expect to be restricted in AMP are not, which is where I got worried. Some companies get to have their own tags with their own specific functionality, but it’s unclear whether everyone can get those. There are, for instance, specific tags for YouTube and Twitter. To get your tag in AMP you’ll have to apply to the people that lead its development. The same is true for most advertising formats: only 5 ad platforms are supported, 2 of which are owned by Google.

Currently there is no info to be found on the AMP project site about how the process of applying for new tags or ad formats, or other things, will work. The site just has a form with no information on who you’re submitting info to. It doesn’t feel “open”, it feels very closed.

Right now, AMP seems to be far from an open standard. It’s a standard devised by Google, which was smart enough to allow a few competitors access to not be hit by court cases immediately.

An anti-spam update

Other news this week was that Google rolled out an update to minimize the number of hacked sites showing in the search results. They’re calling it an algorithmic update, yet, to be honest, most of what I’m seeing suggests that they actually just flagged thousands if not more sites as spam. Some of the most spammed for keywords had their entire top 20 change, but within 2 days the entire top 20 was filled back up with hacked sites, just relatively new ones.

What it does show is that you should really make sure your site doesn’t get hacked. This article on WordPress security might be a good start if you’re on WordPress.

That’s it, see you next week!

joost signature

October 10th 2015 spam

Recent FCC Order Helps Shopkick Defeat TCPA Claims

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Screen Shot 2014-10-07 at 8.54.54 AMThis is a TCPA lawsuit against Shopkick, a rewards-based app that lets shoppers accumulate and use in-store rewards. Plaintiff brought a putative class action, alleging that Shopkick caused invites to be sent to users’ contacts. Shopkick previously filed a motion to dismiss, which the court rejected. (Prior post here: “Shopkick Unable to Shake Text Spam Complaint”.) Relying on a recently issued FCC Telephone Consumer Protection Act Order, Shopkick argued that it was not the “maker or initiator” of the messages at issue.

The court reviews the FCC Order, which dealt with, among other matters, petitions filed by texting/calling apps, including TextMe, addressing user-initiated texts. The FCC found that TextMe app’s invitations were not initiated by TextMe; the Shopkick court finds this interpretation reasonable and applicable to the messages at issue. Two factors pointed in the direction of Shopkick being the sender: (1) the users could not alter the content of the messages, and (2) the content of the messages could be construed as advertisements for Shopkick. Nevertheless, as the FCC did with TextMe, the court focuses on the “affirmative choice” required by the user to send the messages, and finds that in this case the users, not Shopkick, are the senders.

Shopkick’s evidence, apparently uncontroverted, showed:

a user of its app “must [have] proceed[ed] through a multi-step invitation flow within the app” to cause text messages to be sent to contacts in the user’s phone. First, the user must have affirmatively granted the Shopkick app “permission to access the user’s contacts in the phone.” Second, when the app provided the user with the option to “invit[e] friends,” the user must have responded by selecting “Continue” rather than “No, thanks.” Third, once the user clicked “Continue,” the user would have been shown a series of screens by which he or she was given the option of selecting the contacts to whom the invitations would be sent. Fourth, once the user selected contacts, the user would have been shown a screen listing the chosen contacts and the “format” in which the invitations were to be sent,6 after which, to cause the invitations to be sent, the user would have then pressed a button stating “Invite Friends.”

Plaintiffs argued that Shopkick’s description of the process was not accurate vis a vis the version of the app at issue in the lawsuit, but Shopkick offers evidence to this effect (which goes unrebutted). Plaintiffs also argued that the Shopkick texts differed form the TextMe ones because the Shopkick texts were more obviously commercial. The TextMe texts had some arguable benefit to the users–expanding their communication network–which was not as obvious for the Shopkick texts (they were more in the nature of one-time referral credits or points, and had no ongoing benefit to the referring user). Plaintiffs also argued that Shopkick did not disclose the precise method of transmission of the referral messages, but Shopkick’s evidence was conclusive on this point (“providing, as example, screen informing user that ‘189 texts 1778 emails 959 facebook’ invitations would be sent if user pressed ‘Invite friends’ [!!]”). Finally, plaintiffs argued that Shopkick should be held liable under an agency theory, but the court rejects this. An earlier FCC ruling plaintiffs relied on in support of their argument involved TCPA violations by third party marketing agents. The court says this rationale is not applicable. Additionally, the court says that plaintiffs have not shown that users are agents of Shopkick.

__

The TCPA’s Omnibus Declaratory Ruling and Order (July 10, 2015) covered a lot of ground, including re-assigned phone numbers, consent issues, and the definition of “autodialer”. Two commissioners dissented to the Order. The Order has already spawned several legal challenges. I hope to summarize some of the Order’s points in another blog post. As relevant here, however, the Order found that “friend invitation texts” could in certain situations be treated as initiated by the users and not by the platform. In the examples used in the Order where the platforms were found to not be responsible for the messages, the platform left it up to the user whether to invite friends and which friends to invite. The court finds those factors equally applicable here. Assuming the disclosures to the user are not deceptive, this seems like the right result.

I previously blogged about group texting companies’ struggles TCPA class actions (“Group Text Services Grapple with TCPA Class Actions“). It’s unclear which of the messages from a platform could fall under the “user-initiated” exception the court relies on here. The user’s own message would obviously be covered, but follow-up messages from the platform are not necessarily covered. Indeed, one platform prevailed on summary judgment in a case involving such texts, but the ruling did not rely solely on the user being the driving force behind transmission of the messages. The ruling (Glauser v. GroupMe), which is being appealed, combined the questions of the auto-dialer, human intervention, and consent.

Plaintiffs’ made the argument against Shopkick that the messages from Shopkick had more of a promotional bent, but the court says this is not relevant. While courts have interpreted “informational messages” narrowly (Chesbro v. BestBuy), and the Order also does not distinguish between commercial and informational messages to wireless numbers, the ruling ends up focusing on user volition.

The TCPA has spawned a crazy amount of plaintiff’s litigation. The tide appears to be turning in the other direction, with at least a few recent defense-side rulings. Also, there’s been a marked decrease in CAN-SPAM litigation, with an increase in TCPA litigation. (Refer a friend lawsuits were popular with spam litigation plaintiffs as well.) Perhaps companies and plaintiffs have shifted their energies to the text message medium.

Case citation: Huricks v. Shopkick, No. C-14-2464 MMC (N.D. Cal. Aug. 24, 2015)

Related posts:

Shopkick Unable to Shake Text Spam Complaint — Huricks v. Shopkick

TCPA Claim Against Taco Bell Fails For Lack of Agency

TCPA Claim Over Yahoo!’s IM to SMS Messaging Survives Summary Judgment

Confirmatory Opt-out Text Message Not Actionable Under the TCPA — Ryabyshchuck v. Citibank

Franchisor Isn’t Liable Under the TCPA for Franchisees’ Text Message Campaign – Thomas v. Taco Bell

Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

Group Text Services Grapple with TCPA Class Actions

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Path May Be Liable for Text-Spamming Users’ Contact Lists

Yahoo! Scores Significant Win in Email-to-SMS Lawsuit

9th Circuit Zings Best Buy Over Robocalls – Chesbro v. Best Buy

Spam Arrest’s Sender Agreement Fails Because Email Marketer’s Employees Lacked Authority–Spam Arrest v. Replacements (Forbes Cross-Post)

Telephone Consumer Protection Act Case Update – Summer 2013 Edition

Telephone Consumer Protection Act Case Update – February 2013 Edition

California Supreme Court: Retail Privacy Statute Doesn’t Apply to Download Transactions – Apple v Superior Court (Krescent)

Court: Customer Consents to Receive Texts by Providing Phone Number to Pharmacy – Pinkard v. Wal-Mart Stores, Inc.

Q3 2012 Quick Links, Part 3 (Advertising, Privacy, Consumer Protection)

September 1st 2015 Marketing, spam

Sixth Circuit Says Informational Fax Isn’t an “Ad”–Sandusky v. Medco

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Medco is a “pharmacy benefit manager” (an intermediary between employers/health plan sponsors and drug companies). It sent two faxes to Sandusky Wellness Center, a health care provider, advising that many Sandusky patients had adopted Medco’s formulary, and encouraging Sandusky to prescribe “plan-preferred drugs”. Sandusky sued under the TCPA, which prohibits the transmission of unsolicited advertisements to fax machines.

The key question was whether the faxes in question were “ads”. The court says no. The definition in the statute says that an ad is any material advertising “the commercial availability or quality of any property, goods, or services.” Advertising is “the action of drawing the public’s attention to something to promote its sale.” (Black’s) While it’s obvious the everyday McDonald’s commercial is an ad, the faxes in question can’t quite fit into this category. Medco wasn’t offering its services or any drugs that Medco offered for sale. Nor did it have any interest in soliciting business from Sandusky:

[t]he faxes list the drugs in a purely informational, non-pecuniary sense: to inform Sandusky what drugs its patients might prefer, based on Medco’s formulary—a paid service already rendered not to Sandusky but to Medco’s clients.

The court cites to other on-point cases, including those that involve faxes about reclassifications of drugs (without reference to where the drugs were available for purchase) and one that found a fax from a PPO to a non-participating provider was not a fax where it did not promote the benefit of becoming a member.

The FCC has issued guidance on “incidental” ads and the court says that its conclusion here, because it is based on the unambiguous language of the statute, allows it to sidestep the issue of whether to defer to the agency’s determination on this issue. In any event, the court says that its conclusion is in line with the agency guidance, which says among other things that purely informational faxes which contain “only information, such as industry news articles, legislative updates, or employee benefit information” are not ads.

__

Whether something is an “advertisement” is an interesting question that is addressed less often than one would think. Here, the fax undoubtedly has some benefit to Medco, but the court says that it is not a fax because it doesn’t list any products or services that Medco offers for sale.

Two other notable cases in this arena both involve attorney advertising. In Holtzman v. Turza, the court said that a ghostwritten “newsletter” was an ad, perhaps due to the fact that the attorney-putative author’s contact information occupied a large part of the fax. Stern v. Bluestone [pdf] held that “malpractice reports” sent out by an attorney were not ads notwithstanding that they may have incidentally advertised the lawyer’s services or promoted his expertise. I think what made this case somewhat easier was the fact that Medco could not have a direct client relationship with the recipient nor did it offer products that the recipient could buy directly from Medco.

Eric’s Comment: In what decade is ***fax*** the best way for Medco to communicate this information to Sandusky? Hint: not the 2010s. #SMH

Case Citation: Sandusky Wellness Center v. Medco Health Solutions, No. 14-4201 (6th Cir. June 3, 2015) [pdf]

Related posts:

Junk Fax Claim Fails Due to “Established Business Relationship” Exception — Cardinal Partners v. Fernandez Discipline

Ghostwritten Attorney Newsletter is an “Ad” for TCPA Junk Fax Law Purposes–Holtzman v. Turza

Angie’s List’s Telephone and Fax Information Services May Be Immunized by Section 230–Courtney v. Vereb

Lawyer Hit With $4.2 Million Judgment in Junk Fax Class Action — Holtzman v. Turza

Junk Fax Doesn’t Create Conversion Claim–Edwards v. Emperor’s Garden

Latest Junk Fax Lawsuit–Adler v. Vision Lab Telecommunications

June 6th 2015 Marketing, spam

280+ Spam Filter Words and Phrases to Avoid

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Do you ever wonder how many of the emails you send to your newsletter subscribers get caught up in spam filters and junk mail folders?

While checking my Gmail today, I was surprised to see how many marketers’ messages – to which I’d subscribed – were in the spam folder.

A quick scan down the list and it was easy to see why Gmail deemed those messages to be junk… they were rife with spam trigger words and phrases.

Here’s partial screenshot of what I found. I’ve circled and blurred the names of marketers (and affiliate networks) and placed rectangles around the spammy words and phrases.

spam-words

I particularly like ‘buy parajumpers online’, don’t you? :-)

You’ll notice that exclamation points, ALL-CAPS, and mentions of money (income, sales, millionaire) and medicine are all big no-no’s.

Here’s a list of spam filter trigger words and phrases that you should try to avoid using in your email marketing campaigns.

  1. 100% Free
  2. 18+
  3. 21+
  4. $$$, $$ or $
  5. % (as in loan rate)
  6. 100% satisfied
  7. 4U
  8. Accept credit cards
  9. Account Balance
  10. Account Error
  11. Act now! Don’t hesitate!
  12. Additional income
  13. Adults only
  14. All natural
  15. Amazing
  16. Application
  17. Apply Online
  18. As seen on _____
  19. Auto email removal
  20. Avoid bankruptcy
  21. Bargain
  22. Be amazed
  23. Be your own boss
  24. Become a member
  25. Best price
  26. Big bucks
  27. Billing address
  28. Billion dollars
  29. Bulk email
  30. Business opportunity
  31. Business proposal
  32. Business relationship
  33. Buy direct
  34. Call free
  35. Call now
  36. Can’t live without ____
  37. Cancel at any time
  38. Cannot be combined with any other offer
  39. Cash bonus
  40. Cashcashcash
  41. Casino
  42. Cents on the dollar
  43. Check or money order
  44. Claim now
  45. Claim your _____
  46. Claims not to be selling anything
  47. Claims to be in accordance with some spam law
  48. Claims to be legal
  49. Claims you are a winner
  50. Claims you registered with Some Kind of Partner
  51. Click below
  52. Click here (link)
  53. Click to remove
  54. Compare rates
  55. Compete for your business
  56. Confidentially on all orders
  57. Confirm your address
  58. Congratulations
  59. Consolidate debt and credit
  60. Copy accurately
  61. Coupon
  62. Credit bureau
  63. Credit card offers
  64. Credit score
  65. Creditors
  66. Cures baldness
  67. Dear friend
  68. Different reply to
  69. Dig up dirt on friends
  70. Direct email
  71. Direct marketing
  72. Discount code
  73. Do it today
  74. Don’t delete
  75. Drastically reduced
  76. Earn per week
  77. Easy terms
  78. Eliminate bad credit
  79. Email marketing
  80. Erotic
  81. Expect to earn
  82. Extra income
  83. Fantastic deal
  84. Fast Viagra delivery
  85. Financial freedom
  86. Find out anything
  87. For free
  88. For instant access
  89. For just $ _____ (some amt)
  90. Free
  91. Free access
  92. Free cell phone
  93. Free consultation
  94. Free DVD
  95. Free grant money
  96. Free hosting
  97. Free installation
  98. Free investment
  99. Free leads
  100. Free membership
  101. Free money
  102. Free offer
  103. Free preview
  104. Free priority mail
  105. Free quote
  106. Free sample
  107. Free trial
  108. Free website
  109. friend@ (in return address)
  110. Full refund
  111. Funding
  112. Get It Now
  113. Get paid
  114. Get started now
  115. Gift certificate
  116. Great offer
  117. Guarantee
  118. Have you been turned down?
  119. Hidden assets
  120. Home employment
  121. Human growth hormone
  122. If only it were that easy
  123. In accordance with laws
  124. Increase sales
  125. Increase traffic
  126. Instant cash
  127. Insurance
  128. Investment decision
  129. It’s effective
  130. Join millions of _____
  131. Laser printer
  132. Last Chance
  133. Limited time only
  134. Loan
  135. Long distance phone offer
  136. Lose ____
  137. LOTTO
  138. Lower interest rates
  139. Lower monthly payment
  140. Lowest price
  141. Mail in order form
  142. Marketing solutions
  143. Mass email
  144. Meet singles
  145. Membership information
  146. Message contains disclaimer
  147. Millionaire
  148. MLM
  149. Money back
  150. Money making
  151. Month trial offer
  152. More Internet traffic
  153. Mortgage rates
  154. Multi level marketing
  155. Name brand
  156. Natural
  157. New customers only
  158. New domain extensions
  159. Nigerian
  160. No age restrictions
  161. No catch
  162. No claim forms
  163. No cost
  164. No credit check
  165. No disappointment
  166. No experience
  167. No fees
  168. No gimmick
  169. No hidden charges
  170. No inventory
  171. No investment
  172. No medical exams
  173. No middleman
  174. No obligation
  175. No purchase necessary
  176. No questions asked
  177. No selling
  178. No strings attached
  179. Not intended
  180. Offshore
  181. Offer ______
  182. On sale
  183. Once in lifetime
  184. One hundred percent free
  185. One hundred percent guaranteed
  186. One time mailing
  187. Online biz opportunity
  188. Online pharmacy
  189. Only $
  190. Opportunity
  191. Opt in
  192. Order now
  193. Order status
  194. Orders shipped by priority mail
  195. Outstanding values
  196. Over 18
  197. Over 21
  198. Pay less
  199. Payment details, i.e. Payment declined
  200. Pennies a day
  201. People just leave money laying around
  202. Please read
  203. Porn
  204. Potential earnings
  205. Price drop
  206. Print form signature
  207. Print out and fax
  208. Priority mail
  209. Prizes
  210. Profits
  211. Promise you _____!
  212. Pure profit
  213. Real thing
  214. Refinance
  215. Removal instructions
  216. Remove (in quotes)
  217. Remove subject
  218. Removes wrinkles
  219. Requires initial investment
  220. Return on investment
  221. Reserves the right
  222. Reverses aging
  223. Risk free
  224. Round the world
  225. Safeguard notice
  226. sales@
  227. Satisfaction guaranteed
  228. Save $
  229. Save big money
  230. Save up to _____
  231. Score with babes
  232. Search engine listings
  233. Search engine optimization
  234. See for yourself
  235. Sent in compliance
  236. SEO
  237. Serious cash
  238. Serious only
  239. Shopping spree
  240. Sign up free today
  241. Social security number
  242. Special promotion
  243. Stock alert
  244. Stock disclaimer statement
  245. Stock pick
  246. Stop snoring
  247. STRICTLY CONFIDENTIAL
  248. Strong buy
  249. Subject to credit
  250. Supplies are limited
  251. Take action now
  252. Terms and conditions
  253. The best rates
  254. The following form
  255. They keep your money — no refund!
  256. They’re just giving it away
  257. This isn’t junk
  258. This isn’t spam
  259. Trial offer
  260. University diplomas
  261. Unlimited
  262. Unsecured credit/debt
  263. Urgent
  264. US dollars
  265. Vacation offers
  266. Viagra (and other drugs)
  267. We hate spam
  268. We honor all ____
  269. Weekend getaway
  270. What are you waiting for?
  271. While supplies last
  272. While you sleep
  273. Who really wins?
  274. Why pay more?
  275. Will not believe your eyes
  276. Winner
  277. Won
  278. Winning
  279. Work at home
  280. You have been selected
  281. Your income
  282. XXX

Spam Assassin ScoreYes, that is a very long list of spam words, but you don’t have to remember them all.

You can use SpamAssassin™, the spam filtering tool provided by Aweber. It automatically checks your message and displays key areas that appear to be spam and are caught by the filter.

Aweber advises that any message with a score below 5 is OK to send.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

Ros




Email marketing made easy.

Want to get an email marketing campaign up and
running in minutes? AWeber can help.

Powered by AWeber

March 23rd 2015 spam

280+ Spam Filter Words and Phrases to Avoid

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Do you ever wonder how many of the emails you send to your newsletter subscribers get caught up in spam filters and junk mail folders?

While checking my Gmail today, I was surprised to see how many marketers’ messages – to which I’d subscribed – were in the spam folder.

A quick scan down the list and it was easy to see why Gmail deemed those messages to be junk… they were rife with spam trigger words and phrases.

Here’s partial screenshot of what I found. I’ve circled and blurred the names of marketers (and affiliate networks) and placed rectangles around the spammy words and phrases.

spam-words

I particularly like ‘buy parajumpers online’, don’t you? :-)

You’ll notice that exclamation points, ALL-CAPS, and mentions of money (income, sales, millionaire) and medicine are all big no-no’s.

Here’s a list of spam filter trigger words and phrases that you should try to avoid using in your email marketing campaigns.

  1. 100% Free
  2. 18+
  3. 21+
  4. $$$, $$ or $
  5. % (as in loan rate)
  6. 100% satisfied
  7. 4U
  8. Accept credit cards
  9. Account Balance
  10. Account Error
  11. Act now! Don’t hesitate!
  12. Additional income
  13. Adults only
  14. All natural
  15. Amazing
  16. Application
  17. Apply Online
  18. As seen on _____
  19. Auto email removal
  20. Avoid bankruptcy
  21. Bargain
  22. Be amazed
  23. Be your own boss
  24. Become a member
  25. Best price
  26. Big bucks
  27. Billing address
  28. Billion dollars
  29. Bulk email
  30. Business opportunity
  31. Business proposal
  32. Business relationship
  33. Buy direct
  34. Call free
  35. Call now
  36. Can’t live without ____
  37. Cancel at any time
  38. Cannot be combined with any other offer
  39. Cash bonus
  40. Cashcashcash
  41. Casino
  42. Cents on the dollar
  43. Check or money order
  44. Claim now
  45. Claim your _____
  46. Claims not to be selling anything
  47. Claims to be in accordance with some spam law
  48. Claims to be legal
  49. Claims you are a winner
  50. Claims you registered with Some Kind of Partner
  51. Click below
  52. Click here (link)
  53. Click to remove
  54. Compare rates
  55. Compete for your business
  56. Confidentially on all orders
  57. Confirm your address
  58. Congratulations
  59. Consolidate debt and credit
  60. Copy accurately
  61. Coupon
  62. Credit bureau
  63. Credit card offers
  64. Credit score
  65. Creditors
  66. Cures baldness
  67. Dear friend
  68. Different reply to
  69. Dig up dirt on friends
  70. Direct email
  71. Direct marketing
  72. Discount code
  73. Do it today
  74. Don’t delete
  75. Drastically reduced
  76. Earn per week
  77. Easy terms
  78. Eliminate bad credit
  79. Email marketing
  80. Erotic
  81. Expect to earn
  82. Extra income
  83. Fantastic deal
  84. Fast Viagra delivery
  85. Financial freedom
  86. Find out anything
  87. For free
  88. For instant access
  89. For just $ _____ (some amt)
  90. Free
  91. Free access
  92. Free cell phone
  93. Free consultation
  94. Free DVD
  95. Free grant money
  96. Free hosting
  97. Free installation
  98. Free investment
  99. Free leads
  100. Free membership
  101. Free money
  102. Free offer
  103. Free preview
  104. Free priority mail
  105. Free quote
  106. Free sample
  107. Free trial
  108. Free website
  109. friend@ (in return address)
  110. Full refund
  111. Funding
  112. Get It Now
  113. Get paid
  114. Get started now
  115. Gift certificate
  116. Great offer
  117. Guarantee
  118. Have you been turned down?
  119. Hidden assets
  120. Home employment
  121. Human growth hormone
  122. If only it were that easy
  123. In accordance with laws
  124. Increase sales
  125. Increase traffic
  126. Instant cash
  127. Insurance
  128. Investment decision
  129. It’s effective
  130. Join millions of _____
  131. Laser printer
  132. Last Chance
  133. Limited time only
  134. Loan
  135. Long distance phone offer
  136. Lose ____
  137. LOTTO
  138. Lower interest rates
  139. Lower monthly payment
  140. Lowest price
  141. Mail in order form
  142. Marketing solutions
  143. Mass email
  144. Meet singles
  145. Membership information
  146. Message contains disclaimer
  147. Millionaire
  148. MLM
  149. Money back
  150. Money making
  151. Month trial offer
  152. More Internet traffic
  153. Mortgage rates
  154. Multi level marketing
  155. Name brand
  156. Natural
  157. New customers only
  158. New domain extensions
  159. Nigerian
  160. No age restrictions
  161. No catch
  162. No claim forms
  163. No cost
  164. No credit check
  165. No disappointment
  166. No experience
  167. No fees
  168. No gimmick
  169. No hidden charges
  170. No inventory
  171. No investment
  172. No medical exams
  173. No middleman
  174. No obligation
  175. No purchase necessary
  176. No questions asked
  177. No selling
  178. No strings attached
  179. Not intended
  180. Offshore
  181. Offer ______
  182. On sale
  183. Once in lifetime
  184. One hundred percent free
  185. One hundred percent guaranteed
  186. One time mailing
  187. Online biz opportunity
  188. Online pharmacy
  189. Only $
  190. Opportunity
  191. Opt in
  192. Order now
  193. Order status
  194. Orders shipped by priority mail
  195. Outstanding values
  196. Over 18
  197. Over 21
  198. Pay less
  199. Payment details, i.e. Payment declined
  200. Pennies a day
  201. People just leave money laying around
  202. Please read
  203. Porn
  204. Potential earnings
  205. Price drop
  206. Print form signature
  207. Print out and fax
  208. Priority mail
  209. Prizes
  210. Profits
  211. Promise you _____!
  212. Pure profit
  213. Real thing
  214. Refinance
  215. Removal instructions
  216. Remove (in quotes)
  217. Remove subject
  218. Removes wrinkles
  219. Requires initial investment
  220. Return on investment
  221. Reserves the right
  222. Reverses aging
  223. Risk free
  224. Round the world
  225. Safeguard notice
  226. sales@
  227. Satisfaction guaranteed
  228. Save $
  229. Save big money
  230. Save up to _____
  231. Score with babes
  232. Search engine listings
  233. Search engine optimization
  234. See for yourself
  235. Sent in compliance
  236. SEO
  237. Serious cash
  238. Serious only
  239. Shopping spree
  240. Sign up free today
  241. Social security number
  242. Special promotion
  243. Stock alert
  244. Stock disclaimer statement
  245. Stock pick
  246. Stop snoring
  247. STRICTLY CONFIDENTIAL
  248. Strong buy
  249. Subject to credit
  250. Supplies are limited
  251. Take action now
  252. Terms and conditions
  253. The best rates
  254. The following form
  255. They keep your money — no refund!
  256. They’re just giving it away
  257. This isn’t junk
  258. This isn’t spam
  259. Trial offer
  260. University diplomas
  261. Unlimited
  262. Unsecured credit/debt
  263. Urgent
  264. US dollars
  265. Vacation offers
  266. Viagra (and other drugs)
  267. We hate spam
  268. We honor all ____
  269. Weekend getaway
  270. What are you waiting for?
  271. While supplies last
  272. While you sleep
  273. Who really wins?
  274. Why pay more?
  275. Will not believe your eyes
  276. Winner
  277. Won
  278. Winning
  279. Work at home
  280. You have been selected
  281. Your income
  282. XXX

Spam Assassin ScoreYes, that is a very long list of spam words, but you don’t have to remember them all.

You can use SpamAssassin™, the spam filtering tool provided by Aweber. It automatically checks your message and displays key areas that appear to be spam and are caught by the filter.

Aweber advises that any message with a score below 5 is OK to send.

Comments, questions or suggestions? Please leave a comment below!

Cheers,

Ros




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March 23rd 2015 spam