Is Your Business Violating Federal Law by Sending Out Mass Text Messages?

by Garrett J. Olexa, Member, Jennings, Strouss & Salmon

In 1991, Congress passed the Telephone Consumer Protection Act (TCPA). In simple terms, the TCPA prohibits businesses and individuals from using automatic telephone dialing systems to call or text cell phones unless it is an emergency (e.g. such as an amber or weather alert) or prior express consent has been given. While the TCPA was initially designed to prevent the telemarketing industry from making invasive and potentially costly calls to individuals’ cell phones, the Act also applies to certain types of unsolicited text messaging that occurs without the cell phone owner’s prior express written consent.[1]

The TCPA creates a “private right of action” for individuals that receive calls or texts in violation of the Act, and allows plaintiffs to recover “actual monetary loss,” or $500 for each violation, whichever is greater.[2]  Additionally, if a court finds that a defendant “willfully or knowingly violated” the TCPA, the court may, in its discretion, triple the amount of a claimant’s actual or statutory damages. Thus, depending on the number of text messages sent, the potential claim can be significant.

The TCPA does not bar all business-related text messaging, but instead, focuses, in part, on cellular calls and text messages that are for the purpose of soliciting new or additional business.[3]  For example, cell phone calls or text messages aimed purely at providing information to existing customers, which does not encourage the purchase or investment in property, goods, or services, is not expressly precluded under the TCPA.

Additionally, to be in violation of the TCPA, the sender must be initiating cell phone calls or texts via an automatic telephone dialing system (ATDS).[4]  An ATDS is a device that has the capacity to: (i) store or produce telephone numbers to be called using a random or sequential number generator; and (ii) dial such numbers without human intervention.[5]  Sending individual text messages without the use of an ATDS should not result in a violation of the TCPA.

Also, a business can avoid a TCPA violation by obtaining the recipient’s express consent; however, according to the FCC, being provided a cell phone number does not constitute consent.[6]  Express consent must be a clear and conspicuous written disclosure that the signer is authorizing the business to deliver telemarketing text messages using an ATDS.

The TCPA can and has presented significant pitfalls to unsuspecting businesses that believe they can use an ATDS to generate mass telecommunications or text messaging marketing campaigns without express written consent from cell phone owners.  Any business considering using ATDS to drive new business should review the TCPA and consult with an attorney regarding any questions to help avoid potential and costly liability.

[1]  47 U.S.C. § 227(b)(1)(A)(iii); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009).
[2] 47 U.S.C. § 227(b)(3)(B).
[3] 47 U.S.C. 227(a)(3); 47 CFR 64.1200(f)(14).
[4]   47 U.S.C. § 227(a)(1) and (b)(1).
[5]  23 FCC Rcd. 559, 566 (2008).
[6] See In re Rules & Regs. Implementing the TCPA of 1991, 27 FCC Rcd. 1830, 1838, (Feb. 15, 2012).

Mr. Olexa’s broad-based practice includes commercial and personal injury litigation, real estate matters, business formation and corporate transactions, and estate planning.

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