In a recent piece, we discussed a decision by the first federal appellate court to rule that there is no private right of action under the Telephone Consumer Protection Act (“TCPA”) for the receipt of text messages (“SMS Message”). While this decision certainly was a win for the marketing industry, it should be noted that this does not mean that marketers have free reign to send consumers unsolicited SMS Messages and avoid potential TCPA liability. Below, we discuss the future of the TCPA, SMS Messages, and what companies should do if they engage in SMS Message-based marketing.
Interplay Between The TCPA and SMS Messages
As our readers know, the TCPA confers a private right of action to anyone who receives more than one “telephone call” within any 12 month period from or on behalf of the same entity. Until recently, the meaning of “telephone call” under this subsection of the TCPA was understood to extend to SMS Messages. While federal district courts were split as to whether or not consumers could maintain a private right of action under the TCPA for the receipt of SMS Messages, no federal appellate court had ruled on the issue until the United States Court of Appeals for the Seventh Circuit (“7th Circuit”) did so in Steidinger v. Blackstone Medical Services. In Steidinger, the 7th Circuit explicitly held that there is no private right of action under the TCPA for the receipt of unsolicited SMS messages. And while the marketing industry may have rejoiced in the aftermath of this ruling, careful readers of our prior piece likely noted the limitations of this TCPA SMS Message decision. First, in the absence of prior express consent, the TCPA still prohibits SMS Messages sent using an autodialer or those containing a prerecorded message, and numerous courts have determined that the TCPA proscribes the sending of these types of SMS Messages. Second, this ruling is merely persuasive authority in other jurisdictions outside of the 7th Circuit (i.e., Illinois, Indiana, and Wisconsin). Third, most states have their own mini-TCPA laws, which confer private rights of action for the sending of unsolicited SMS Messages. Fourth, companies that send unsolicited SMS Messages may still be targeted by state and federal regulators.
KMT Is Here to Help If You Need TCPA And SMS Message-Based Marketing Guidance
Consumer-friendly jurisdictions, such as California, are almost certain to continue to conclude that there is a private right of action under the TCPA for the receipt of unsolicited SMS Messages. And because the 7th Circuit is the only appellate court that has, to date, addressed this issue, companies engaged in SMS Message-based marketing must remain vigilant as the telemarketing legal arena continues to evolve.
The attorneys at Klein Moynihan Turco (“KMT”) stay abreast of all TCPA-related developments and routinely: (1) provide federal and state law guidance related to the delivery of SMS Messages; (2) craft telemarketing policies and procedures for clients; and (3) advise on state and federal telemarketing law compliance matters. In addition, KMT’s attorneys have successfully defended numerous companies in TCPA-related SMS Message lawsuits. If you have been sued for sending unsolicited SMS Messages in violation of the TCPA, or need assistance with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com 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 seeking 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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