Although the Telephone Consumer Protection Act (TCPA) may be most commonly known for its prohibitions on robocalls, text messages also fall within the TCPA’s broad scope. Given the outsize risk of class action TCPA litigation arising from text messaging, it is important to understand the requirements for maintaining a texting program that is compliant with the TCPA, Federal Communications Commission (FCC) regulations, and industry standards. This legal alert discusses four common risks that companies can face when using text messaging to communicate with their customers, and offers commentary on these challenging issues.

Risk One: Failing to Employ Sufficient Opt-In Mechanisms

The TCPA requires that companies obtain the appropriate level of consent for automated communications, including text messages.1 For texts, best practices include: (1) requiring consumers to provide consent by affirmatively opting-in to receive text messages; and (2) using a “double opt-in” procedure if the consumer initially agrees to receive text messages in a manner other than via a text from his or her phone, such as by completing an online form or verbally agreeing to join the campaign. These practices are consistent with industry compliance standards.

Scenario One: A utility company sends one text to a customer as a kickoff to its text campaign by notifying the customer that he is subscribed to the company’s outage alerts. This scenario is modeled off of Grant v. Commonwealth Edison Co., Case No. 1:13-cv-08310, in the Northern District of Illinois. Although the company argued that the customer provided his “prior express consent” to receive the text regarding outage alerts because it was part of an informational safety program, the company ultimately agreed to establish a multimillion-dollar settlement fund.

Scenario Two: A store clerk asks a customer if she would like to enroll in the company’s rewards program. The customer verbally agrees and receives a text thanking her for enrolling in the program and prompting her to download the company’s app. This scenario is based off of the class action case, San Pedro-Salcedo v. Haagen-Dazs Shoppe Co., Case No. 5:17-cv-03504-EJD, currently pending in the Northern District of California. The court denied the company’s motion to dismiss in holding that the text, by prompting the customer to download the app, arguably advertised the app. A motion to certify the class has been filed and is currently scheduled for a hearing in June 2019.

Eversheds Sutherland Commentary: Consistent with industry standards, it is important to employ opt-in or “double opt-in” to obtain consent from consumers who enroll in text campaigns.

Risk Two: Relying Solely on Indirect Consent

Perhaps a more complicated and not so readily apparent issue involves consent that has been conveyed by a third party rather than by the consumer directly. The FCC has held that a consumer’s consent can be “obtained through and conveyed by an intermediary,” but the intermediary cannot consent on the consumer’s behalf.2

Scenario One: In seeking medical treatment, a patient provides his girlfriend’s cell phone number during the intake process. The patient was allowed to use his girlfriend’s cell phone for emergency purposes with his girlfriend’s permission and may have additionally used her cell phone number in other circumstances as well. The girlfriend subsequently received autodialed calls to collect money owed by the patient for his medical treatment. This scenario is modeled off of the case, Jackson v. PMAB, LLC, 2017 WL 4316096 (D. N.J. Sept. 28, 2017). The court in Jackson denied the plaintiff’s motion for summary judgment by holding that a genuine issue of material fact existed as to whether the girlfriend, as the call recipient, gave her express consent to the patient to provide her cell phone number for communications related to his medical treatment. Although Jackson suggests that this inquiry is based on the particular facts at issue in each case, companies risk TCPA liability when they fail to obtain the direct consent of the call or text recipient.

Scenario Two: A group messaging company requires only that the individual who creates the group message consents to receive future texts. Modeled after a 2014 Order, the FCC held that the group messaging platform could be liable under the TCPA if its users who create the group messages do not receive the prior express consent of the other group members. The FCC encouraged text platforms to “ensure that [text message] group organizers do in fact obtain the requisite consent.”3

Eversheds Sutherland Commentary: Appreciate the distinctions between relaying the consent of the text message recipient and providing consent on behalf of the text message recipient. This is a case-by-case analysis and likely one that may not be readily inferred based on the parties’ relationship alone. Furthermore, complying with opt-in requirements, and providing easy-to-follow instructions to unsubscribe from text messages, are important considerations to limit exposure in complex situations such as these.

Risk Three: Misunderstanding the Emergency Exception

The TCPA provides an express exception from the consent requirement for communications that are made for “emergency purposes.”4 FCC regulations define “emergency purposes” as “situation[s] affecting the health and safety of consumers.”5

Scenario: A parent provides his or her cell phone number to a school as a contact. The school does not disclose the types of messages the parent may receive, and subsequently sends the parent automated texts regarding a weather-related closure, an upcoming parent-teacher conference, and a non-school, community event taking place at the school. In a 2016 Order, the FCC clarified that schools may rely on the TCPA’s emergency exception to send automated texts for limited purposes regarding weather-related closures, threats or health risks, and unexcused absences.6 Therefore, according to the FCC, the first text would fall within the emergency exception. Importantly, the FCC held that automated non-emergency, school-related texts still require the recipient’s prior express consent, which is generally satisfied when students or parents provide their phone numbers as a school contact. In the FCC’s view, texts regarding parent-teacher conferences are closely related to the school’s educational mission, and consent to receive such messages is likely satisfied by virtue of the parent providing his or her number to the school. On the other hand, the FCC found that texts regarding non-school events are not closely related to the school, and therefore consent is not similarly satisfied when the parent provides his or her number to the school.

Eversheds Sutherland Commentary: While the FCC has recognized the emergency exception in limited circumstances, a text campaign can ensure compliance by adhering to federal rules and industry standards even where such an exception might arguably apply.

Risk Four: Giving Mixed Signals Regarding Program Costs

FCC regulations require that a consumer’s prior express written consent be part of a “clear and conspicuous disclosure . . . .”7 Companies may face this risk if their disclosures lack clear language or otherwise do not comply with industry guidance.

Scenario: A company’s call-to-action program, which encourages consumers to text a keyword or phrase to join the program or to receive a discount or promotion code, does not charge consumers to join or be eligible to receive the promotion. The company’s disclosure tells consumers that it is free to participate. Industry guidance requires that such text campaigns disclose that message and data rates may apply. Therefore, companies cannot misinform consumers about the costs associated with their programs by implying that they are free even though consumers may still incur charges associated with standard message and data rates.

Eversheds Sutherland Commentary: Use of confusing or misleading language in marketing disclosures encompasses a broader risk if companies do not adhere to industry guidance on how costs and other aspects of the campaign are communicated to consumers.

Conclusion

While text campaigns can be an efficient and cost-effective means of advertising and growing a customer base, they present ongoing risks of liability. Avoiding the common risks associated with texting programs is one critical component of mitigating exposure and potential liability under the TCPA. For companies that communicate through automated calls and text messages, it is important to have a robust compliance program and to understand what the business intends to communicate to the call and text recipients. There is often a gray area between a message that does not violate the TCPA and one that does violate the TCPA. Understanding and addressing the distinctions, including those described above, can mean the difference in avoiding costly litigation, including class action complaints.