Thirty years ago, telemarketers exclusively used phone calls as their preferred advertising medium. In 1991, Congress passed the Telephone Consumer Protection Act (“TCPA”) to protect consumers from unwanted advertising calls. Today, telemarketing has shifted its focus from phone calls to text messages. The Federal Communications Commission (“FCC”) has determined that a text message and a call are the same – creating SMS TCPA rules to solidify that determination.

The TCPA has two main provisions that restrict the use of SMS messages for telemarketing purposes. First, telemarketers cannot send unsolicited commercial text messages to consumers using an autodialer. An autodialer is equipment that produces phone numbers using a random or sequential number generator; a telemarketer who uses an autodialer and then contacts the generated phone numbers violates this restriction. Second, the TCPA prohibits telemarketers from sending advertising text messages to consumers whose residential phone numbers are listed on the National Do Not Call Registry. Telemarketers can avoid running afoul of both restrictions by obtaining prior express written consent from consumers before sending any text messages.

Courts have consistently treated text messages and calls the same way when evaluating SMS TCPA compliance. That treatment means that just a handful of offending text messages could trigger a TCPA class action and result in hundreds of thousands of dollars in damages. Some helpful questions to ask when endeavoring to avoid TCPA liability include:

  • Do you have valid prior express written consent to send text messages to every consumer on your contact list? Drafting valid TCPA consent language involves navigating a minefield of regulatory nuance, so telemarketers must display a high attention to detail.
  • Are the text messages advertising a product or service? The Do Not Call restriction only applies to advertising messages, but not to job alert or certain healthcare text messages.
  • How did you obtain the phone numbers on your contact list?
    • Were the numbers randomly or sequentially generated? If so, then you are likely using an autodialer and should not send text messages to those numbers without consent to do so.
    • Did you purchase the contact list from a lead generator? If this is a regular practice, be sure your purchase contracts include a provision requiring the seller to certify the leads as TCPA compliant (for you) and to indemnify you if a suit arises from use of those leads.
    • Did the consumers voluntarily provide their information when signing up at your website? If so, then as long as you have valid TCPA consent language that they agree to at signup, you are probably safe from a TCPA perspective.

Hire experienced telemarketing attorneys.

The TCPA evolves constantly and SMS TCPA rules with it. More difficult is that a California court can interpret the TCPA one way on Monday, and then a Florida court can interpret the same provision differently on Wednesday. Trying to stay TCPA compliant on your own is a full-time job and can have dire consequences if not done correctly.