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What Types of Text Messages Violate The TCPA?

by Dan Bryson | Civil Rights | Share

Technology has allowed businesses to bridge the gap between corporation and consumer, now more than ever, as companies and consumers connect through social media, email, and text messages. As consumers’ relationship with technology matures, so should marketing strategies. When devising a mobile marketing strategy that includes messaging, senders must be mindful of applicable state and federal laws. Notable, the Federal Communications Commission (FCC) established the Telephone Consumer Protection Act (TCPA) to regulate consumer-facing telemarketing text messages and phone calls.

What is the TCPA?

In 1992, the FCC established the TCPA as an effort to combat harassing telemarketing calls. Over the years, the law has been updated to include protection of communications beyond just phone calls, including protections against text messaging. The TCPA places restrictions on telemarketing efforts through the use of automated telephone equipment. Automated telephone equipment includes the use of automatic dialing systems, artificial or prerecorded voice messages, text messages, and fax machines. The TCPA also regulates collection efforts made via phone.

While the TCPA does place limits, it does allow for the use of automated telephone equipment – such as text messaging – in certain situations enumerated by statute.

Texting and the TCPA

It seems like people today prefer to communicate with each other via text rather than over a phone call, and business communications are no different. Adapting to consumer behavior, more companies now use text messaging to deliver marketing content than direct mail or email campaigns. When comparing click-thru rates and conversions, text messaging campaigns outperform emails drastically.

Consumers are likely to open 99% of text messages received, compared to 28% of emails. When looking at the numbers, it’s easy to understand why businesses now prefer text campaigns to deliver news to consumers; however, regulations remain in place for businesses to follow so they do not violate the TCPA.

Violations of TCPA

Unsolicited Text Messages

If a business is texting consumers without their permission (unsolicited), this constitutes a TCPA violation. All communication between business and consumer must come only after the consumer provides expressed written consent. If a consumer signs up for business alerts via text, they must also confirm this subscription via automatic confirmation message sent by the business containing TCPA mandated disclosures.

Requesting Payment or Additional Information

Any text message requesting payment by credit card or the release of additional identifying information before the actual message will be revealed violates TCPA guidelines.

Scrambled Messages

Messages sent to consumers that require the receiving party to use a descrambler to understand them violate the TCPA. Additionally, unintelligible or incomprehensible audio also violates federal law.

TCPA Do Not Call Registry

In 2003, the FCC and Federal Trade Commission (FTC) established the national Do Not Call registry for consumers. Consumers may add their telephone numbers to the registry to avoid being contacted by telemarketers. It is a TCPA violation for telemarketers, excluding non-profit organizations, to contact consumers listed on the Do Not Call list.

Robocalls and Automated Dialing

Robocalling occurs when a computer autodials a number instead of a human, which violates the TCPA. Robocalling cannot be used to generate phone numbers and/or to send text messages to consumers. In addition to robocalling, automated dialing efforts undertaken to dupe consumers into staying on the phone also violates the TCPA.

Restrictions for Residential Numbers 

As part of the FCC’s 2012 revision to the TCPA, businesses can no longer use an “established business relationship” as a means of consent for contacting a consumer on their listed residential telephone number. This means a business still needs the consumer’s permission to contact them via text message or voice call to a mobile phone if it is listed as your residential number.

Penalties for TCPA Violations

Spam and harassing telemarketing calls and text messages are more than annoying; they are illegal and violate the TCPA. Fines for businesses ignoring TCPA regulations can range from a minimum of $500 per call or text to $1,500. If you’re a victim of robocalls, the attorneys at Whitfield, Bryson & Mason can help. Our lawyers are national leaders in TCPA law and have helped thousands of people across the country hold aggressive telemarketers, debt collectors, and more accountable for failing to comply with federal law.

Our attorneys know the law and understand how to effectively represent consumer rights under 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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Dan Bryson

Founding Partner

For over 28 years, Dan has focused his practice on complex civil litigation, successfully representing thousands of owners in a wide variety of defective construction product suits, class actions, and various mass torts and recovering more than $1.25 billion for his clients in numerous states throughout the country.

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