SMS Text Messages and the TCPA- Klein Moynihan Turco LLP

SMS Text Messaging and the TCPA

Short Message Service (SMS) text messaging has become a ubiquitous form of communication for people over the last decade.  Consequently, marketers and advertisers who are continuously refining their processes to more successfully connect with current and prospective consumers have gravitated to the medium in droves.  Oftentimes, however, they do so without regard for the nuanced and particular regulations that govern SMS text message marketing.  

What are the rules applicable to SMS text messaging?

Both federal and state laws provide unique privacy protections for cellphone subscribers.  In fact, there are strict regulations governing the manner in which cellular telephone numbers may be contacted for marketing purposes.  The foremost of these laws is the federal Telephone Consumer Protection Act (“TCPA”).  In general, the TCPA prohibits placing telephone calls to cell phones through use of automatic dialing equipment without the prior express consent of the call recipient.  It is not unusual for businesses to engage in SMS text messaging campaigns under the assumption that the TCPA does not apply to them.  This amounts to a misinformed understanding of the TCPA’s compliance requirements.  The TCPA has long been interpreted by courts and regulators to apply equally to SMS text messaging as it does to traditional telephone calls.  A guiding principle for businesses is that if they attempt to contact consumers on their cellphones, the TCPA is likely to govern such communications.  

Obtaining a consumer’s prior express consent to contact her/him via automated means will help inoculate against potential liability, notwithstanding the TCPA’s restrictions.  Nevertheless, what passes for sufficient prior express consent is constantly being contested by regulators and class action plaintiffs alike.  Challenges to the adequacy and conspicuousness of consent disclosures, or the breadth or narrowness of the scope of consent, have only increased in the last few years.  

Implications of Facebook Decision on SMS Text Message Marketing

For most businesses, engaging in text message campaigns is likely to involve use of automatic telephone dialing equipment in order to maximize the cost efficiencies of SMS text messaging.  Which dialing equipment is regulated by the TCPA has been a heated topic of debate for years.  Recently, the United States Supreme Court provided a measure of clarity to this debate when it issued its decision in Facebook, Inc. v. Duguid.  Through that ruling, the Supreme Court reinforced the principle that the TCPA requires equipment to store or produce telephone numbers using a random or sequential number generator in order to come within the statute’s purview.  For those companies that rely on telemarketing to build the bottom line, the Facebook ruling was a significant positive development.

Maintaining SMS Text Messaging Compliance

There is little question anymore that SMS text message marketing is an efficient and cost effective means to service potential and existing customers.  Nevertheless, such campaigns are not without risk in today’s regulatory climate.  TCPA class action lawsuits remain among the most frequently filed cases in federal court, finding in their crosshairs even the most buttoned up businesses.  The most effective means to reduce the likelihood of such a lawsuit is to engage experienced and knowledgeable marketing counsel to review all aspects of your text message marketing practices.    

If you need to review your telemarketing practices or are the subject of a TCPA litigation proceeding please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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