If you use unsolicited automated text messages, emails, phone calls or blast faxes as a marketing tool to increase product and service awareness, be warned: consumers are becoming increasingly tired of receiving such messages and are taking aggressive action against companies using these and other marketing ploys in violation of federal law.

Dissemination of unsolicited automated messages via text, email, telephone and fax is generally prohibited by the Telephone Consumer Protection Act ("TCPA"). Unlike other consumer protection statutes, the TCPA does not cap total liability. Class actions are springing up around the country seeking millions in damages from the companies sending out these messages. Recently, companies such as Papa John's, Domino's and Coca-Cola have reached multimillion dollar settlements with classes for alleged violations of the TCPA.

Not only are these class actions proliferating, but the Federal Communications Commission has made it more difficult for companies to comply with the TCPA. In new rules that will become effective this October:

  • The FCC will require that businesses obtain unambiguous written consent before making an automated telemarketing call or sending an automated text message, email or fax, even if the company sending the message has an established business relationship with the recipient. This elimination of the "established business relationship" exception is critical and could expose more companies to liability.
  • Using a third-party telemarketer would not necessarily insulate a business from liability under the TCPA. Businesses now could be vicariously liable if their outside telemarketers violate the TCPA.
  • Under federal rules implementing the TCPA, damages can amount up to $500 for each violation (multiplied by the number of unsolicited messages sent) or up to $1500 for each willful violation.