In response to complaints that consumers were being charged for unsolicited marketing text messages, Connecticut’s Gov. Daniel Malloy signed legislation that adds unsolicited marketing text and media messages to the state’s existing telemarketing law. Connecticut’s law now bans, absent prior express written consent (as defined by the FCC’s Rules for Telephone Consumer Protection Act, namely signed consent) sending: (1) unsolicited autodialed commercial calls; (2) unsolicited marketing text messages; and (3) unsolicited marketing “media messages.” (The law also covers calls or messages designed to “obtain information that will or may be used for marketing or sales solicitations.”) The law requires companies that issue account statements for cell phones, landline telephones, and mobile devices to send consumers written notice at least twice annually, informing them how to register their numbers on the Connecticut Do Not Call registry and how to file a complaint with the State Department of Consumer Protection. The Connecticut law diverges from the similar, federal Telephone Consumer Protection Act with respect to text messages in a few ways. First, it is “technology neutral” in its requirement of prior express written consent for marketing texts. It requires such consent for all unsolicited marketing text messages, not just those sent via technology with auto-dialer capabilities as under the TCPA. The FCC Rules for the TCPA, on the other hand, require signed consent for marketing auto-dialed calls and texts, and express consent (i.e., simple consent, no signature needed) for non-marketing auto-dialed calls and texts. The Connecticut law also calls for higher regulatory penalties than the TCPA. As revised, the Connecticut law permits a maximum fine of $20,000 per unsolicited message (up from the prior $11,000); more than 13 times greater than the penalties available under the TCPA. A violation of the law constitutes a violation of the Connecticut Unfair Trade Practices Act, which provides for a private right of action.
TIP: Given that most text marketing campaigns are done through auto-dial technology (and thus companies should already be obtaining express consent as required under the TCPA), the Connecticut law may have minimum impact on national programs. However its passage is a reminder to review text message consent practices – especially in light of the high potential fines.