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Text messaging service faces class action suit for spamming users

CHASING UR ANSWER LIKE PAPARAZZI AFTER BRITNEY. *CELEBS DRIVE INTERESTING CARS. WANNA KNOW WHO DRIVES WHAT? MASERATI, BENTLEY, PINTO? TXT CELEB CARS TO KNOW.

 

If you've ever gotten the above advertisement texted to your phone, you could be a plaintiff in a class action lawsuit filed today.

 

Illinois resident John Gould filed a class action suit today against ChaCha Search, Inc., a company he claims has been sending him "unauthorized and deceptive" text messages.

ChaCha Search is a texting service that invites users to call or text in questions and get answers on their phones. While it warns users that standard message rates may apply, it does not inform users that they will continue to receive spam texts, which can incur further costs from the users' cellular phone companies.

 

Gould, fed up with this, filed suit on behalf of the entire class of people. Will he win?

Maybe someone with unlimited texts should text ChaCha to find out.


EDIT: Today, Susan Marshall, VP of Marketing for the defendant company in this case, ChaCha Search, contacted ChicagoNow with the following comment:


"We were extremely surprised to see your blog posting today about a class action suit against ChaCha Search. We haven't received any notice of the filing whatsoever. We are a free, ad-supported service, but never spam our users by sending them unsolicited messages. Did any fact-checking took place?"

So here's the complaint, if anyone's interested. Check it out, straight from the source. ChaChaSearch complaint.pdf 

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9 Comments

Class Advocate said:

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There already exists several class actions relating to unauthorized text messaging:

http://www.classadvocate.com/?direct=y&category=category&category_level1%5B%5D=3%3A408

Andrew said:

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Someone with unlimited texts will probably not qualify for this class action, since they would need to show harm. Unless they're paying per text, they can't really show that they're out anything - thus, unlimited text plans won't count.

Marian Wang said:

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Very true--to both your comments.

It's interesting to me how unregulated this area still is right now, while suits involving unsolicited faxed advertisements have a very clear law to lean back on. Not so with text messages... at least not yet, but I'm sure it'll happen soon.

Marisa said:

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How can you really be fed up with them sending these messages? You should understand how it works and you can chose not to use the service after seeing. It's not their fault you're an idiot.

tsherman22 said:

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The US is the ONLY country in the world that charges people to receive messages. They also have free email to text gateways. So these spammers are getting a number and hitting every email to sms gateway. The carriers dont care, they make more money if the user doesnt have a text plan. So they are forcing consumers into buying these plans. If these US carriers operated in the EU or Australia they would lose their license.

The FCC should be ashamed of its lack of regulation in the wireless industry. In 1992, the fabled Motorola had over 95% market share of the handset space, now they have less than 5%. That Finnish company in 1992, Nokia, was making rubber boots! Why Motorola developed a proprietary handset and network called Iden!!

True Capitialism will eat their young!! There is a strong need for more regulations in banking, healthcare and technology.

grelca said:

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straight from chacha's terms of use

You expressly agree that, as part of the Services provided by ChaCha, you may receive promotional communications, alerts, and third party advertising materials from ChaCha via text message.

not much of a case here.

since the user must originate the call or text message to chacha in the first place, it falls under implied consent of the terms of use.

Toni said:

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I guess you have to read the fine print about the ChaCha service before you use it. Problem is, the service is for cell phone users who want a question answered. If the ChaCha user had web access, they would look up the answer themselves and not use ChaCha! Does ChaCha make sure a user agrees to a "Terms of Service" agreement before they are allowed to ask a question?

In his response to this article, the ChaCha VP says ChaCha is ad supported and that ChaCha never SPAMS its users or sends unsolicited messages. Part of the issue is, what is SPAM and what is just an ad supported service.

Do The ChaCha said:

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I honestly don't see anything coming from this possible lawsuit...ChaCha was on its toes when it wrote the TOS...

Quote:
By using the Site and the Services, you acknowledge that you have read and understood all of the Terms, and you agree to be bound by these Terms. You acknowledge and agree that the provisions, disclosures and disclaimers set forth in these Terms are fair and reasonable and your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon you by any person or entity. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SITE OR THE SERVICES.
Quote:
Users are responsible for obtaining access to the Site and the Services, and that access may involve third party fees, costs, or expenses (such as those incurred in association with Internet access, wireless telephone access, or other access and communication services fees)....Standard telecommunication rates, text messaging rates, and other rates may also apply depending on your telecommunications provider and service plan. Please check your plan or call your telecommunications provider to be sure of all costs associated with the use of your telephone.
Quote:
You expressly agree that, as part of the Services provided by ChaCha, you may receive promotional communications, alerts, and third party advertising materials from ChaCha via text message.
Quote:
YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH CHACHA OR ANY CHACHA ASSOCIATE IS TO STOP USING THE SITE OR THE SERVICES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IF THE FOREGOING LIMITATIONS ARE UNENFORCEABLE, YOU AGREE THAT CHACHA’S LIABILITY TO YOU UNDER THESE TERMS SHALL NOT EXCEED FIVE DOLLARS ($5.00).

How ChaCha works:

1.IS (Information Seekers) send/call in a questions to ChaCha.

2. While the guides are working on the question, ChaCha automatically sends you a text message to confirm that we received the question and that your answer is on the way. This message also contains different information on ChaCha menus and commands. This may or may not include advertisement material, but most of the time it doesn't.

3. Your answer arrives. This may or may not include advertisement material.

It is not as if ChaCha is sending random advertisement messages to the IS. Each message has a purpose.

cheetahgirl said:

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I'm sorry but John Gould, whoever he is, is a idiot, who can't read, but hires attorney's just because of an aggravation.
John and his attorney's will have to prove that ChaCha is deceptive about the ads, and how the service can be free. I'm a guide at ChaCha answering the questions, and I can tell everyone here first hand, that if someone asks how ChaCha is free, I tell them, that we are ad-supported. And the ads they get, pay for their message. Don't believe me? Ask ChaCha that right now. We're upfront about it.
Secondly, as someone quoted above, by initiating contact with us, they have given their consent to the terms and conditions, it's called implied consent.
Thirdly, no message any ChaCha user receives is unsolicited, John Gould, and his whiny class members contacted us. I've used ChaCha as an Infoseeker, and if I don't send a question in to them, I don't get any spam messages, or any messages at all from them. I see people send STOP, when all they really have to do is not text us. So what will come out of this? probably having to agree to the tos with yes before we answer their question, or tell them to hang up if they don't want to receive ads. Which is much like the "Liquid may be hot" on coffee cups, from a restaurant.
Fourth, How does this guy not have unlimited texting in the year 2009 about to be 2010. Unlimited packages are like 15.00 for unlimited at the most.
I don't think they have a case, I really don't.

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