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Are Opt-Out Text Messages a TCPA Violation?

by Whitfield Bryson & Mason | TCPA | Share

The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to stop blast faxes and robocalls that cost consumers time and money; however, it was enacted before the invention of the smartphone and text messaging. Since having a smartphone means you can communicate with virtually anyone at anytime, it also provides telemarketers and debt collectors new ways to communicate with you. The evolution of communications technology has changed the way businesses reach consumers – most prominently the proliferation of text messaging for a variety of business functions, including mobile marketing and sales, security verification, appointment confirmations, alerts, and more. TCPA law is trying to keep up with the newest methods of communication, while the courts are still interpreting the law and deciding how it applies to advances in technology.

Opt-Out Required

One thing remains consistent: regardless of whether a telemarketer or robocaller calls, texts, or leaves a voice message, they must provide an option for the recipient to opt out. When answering a call, this option must be given at the beginning of the message; when leaving voice messages, a toll-free callback number must be provided so recipients can add their phone numbers to a do-not-call list.

So what are the rules with regard to opt-out text messages and confirmation messages under the Telephone Consumer Protection Act? Since 2012, the Federal Communications Commission (FCC) has upheld that sending a one-time confirmation text message in response to a consumer’s request for no further messages is not a violation of the TCPA. But that only pertains to a text message program in which the sender only sent messages concerning one category of information.  As a result, the scope of a consumer’s opt-out request was always clear to the sender.

What about businesses that seek to clarify the scope of a recipient’s opt-out request in an opt-out confirmation message? For instance, perhaps the consumer wants to receive text message notifications about bill or payment alerts, but does not wish to receive text messages related to new product offerings from the same company. Does the creation of an opt-out sequence seeking clarification of the consumer’s wishes violate the Telephone Consumer Protection Act and/or related rules? The FCC recently accepted comments to clarify the answer to that question. Ultimately, determining the scope of what is and is not allowed under the TCPA will take time… particularly with technological advances happening all the time.

Speak to a TCPA Lawyer Today

The legal team at Whitfield, Bryson & Mason understands unwanted calls and text messages distract you from your daily routine and waste your time. We are here to assist you by providing the legal guidance you need to protect your rights and recover the maximum amount of compensation you are entitled to. Our attorneys know the law and understand how to effectively defend a consumer’s rights against violations of the TCPA in court. Contact us today to talk with an experienced TCPA lawyer and get a free evaluation of the unwanted calls or text messages you’ve received.

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