November 30, 2020

Volume X, Number 335

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Avoiding Commercial Texting Trouble Under the Telephone Communication Protection Act (“TCPA”)

During this era of COVID-19 lockdowns, entrepreneurs and more established businesses strive to find ways to reach consumers at home. On its face, one of the quickest, least expensive, and most direct ways to reach potential customers is through text messaging. Unfortunately, that advantage makes commercial texting subject to abuse, and therefore, that activity is regulated by the Telephone Communication Protection Act (“TCPA”). So, what appears to be quick, inexpensive, and direct can end up crippling a fledgling business.

The Telephone Communication Protection Act

The TCPA regulates many types of commercial or informational communications including text messaging, facsimiles, and robocalls. For applicable communications, it mandates compliance with a set of requirements and makes exemptions for certain types of communications. Compliance is critical – the TCPA provides for stiff civil and criminal penalties for violations; the FCC can take an administrative action to levy civil forfeiture penalties and criminal fines; states can seek injunctive relief and monetary damages of $500 per call and treble damages for willful or knowing violations; and an individual consumer can bring a private lawsuit for injunctive relief and damages, including treble damages. Private lawsuits are normally brought on behalf of a group (“class”) of recipients who attempt to aggregate their claims into one lawsuit. If the class action is successful, a mass-blast text program could cost the defendant sender millions of dollars in damages, plus the cost of attorney’s fees for both Plaintiffs and Defendant.

Avoiding Commercial Texting Trouble

Now, I should mention that the regulations are not insurmountable as long as you know and follow the rules of the road. For example, under the TCPA, you cannot send an applicable text to a recipient on the Do-Not-Call (DNC) registry or to one who has requested that the company stop sending texts, nor can you send applicable texts using an automated telephone dialing system (ATDS) without obtaining advance consent (which in some cases must be in writing) from the recipient. This article does not provide all the information you’ll need to know whether your texts are compliant, but it should be enough to encourage you to consult with an expert in this area before moving ahead with such a plan.

I want to close with an example: A friend recently received a text message on his cell phone stating that the sender buys used cars. My friend called the source number and was informed by a voice message that the text was sent electronically to 130,000 recipients. First, assuming the voice message was correct, and the sender lacked consent for any of the text messages, the minimum damages that could result in a class action would be $500 x 130,000 = $65,000,000, plus any awarded counsel fees. Second, why would the sender set itself up for a class action by revealing the numerosity of the robotext? These examples are intended to help entrepreneurs and businesses steer clear of these issues, so they can avoid TCPA problems that can cause their venture to self-destruct.

©2020 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume X, Number 325
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About this Author

Steven A. Karg Commercial Litigation Norris McLaughlin New Jersey
Member

Steven A. Karg concentrates his practice in commercial litigation with an emphasis on pharmaceutical, products, and consumer liability defense.  He has substantial experience defending manufacturers and/or distributors of a wide variety of products, such as pharmaceuticals, tobacco products, heavy industrial equipment, marine engines, chemicals and chemical processing systems, automobile lifts, pumps, tow tractors and trucks, buses, automotive accessories, trailers, forklifts, fasteners, soil remediation, and food preparation equipment.  Steve has represented clients at both the trial and...

(908) 252-4276
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