Don’t Have a Do-Not-Call Policy? Every SMS You Send Could Violate the TCPA and Come With A Private Right of Action
Thursday, December 22, 2022
SMS Texts Violating TCPA Laws

The Telephone Consumer Protection Act (TCPA) covers unsolicited calls and texts, aimed at protecting consumers from harassing and unwanted communications. With the April 2021 Facebook SCOTUS case[1] (see GT Alert) reducing the prevalence of some TCPA claims with private rights of action, new claims are starting to emerge as plaintiffs’ favorites.

One particular provision, 47 CFR 64.1200(d), is receiving attention recently as courts increasingly allow for a private right of action if it is violated. 64.1200(d) requires the creation of procedures for maintaining an internal list of consumers who have requested not to receive messages. This internal do-not-call policy must be written, and consumer can request it at any time. If requested, it must be provided to them.

Note that this is in addition to the actual calling entity do-not-call list.

In Powers v. One Technologies, LLC, the Northern District of Texas court held that under Section 64.1200(d) the plaintiff was permitted to sue One Technologies after receiving unsolicited text messages when One Technologies lacked a procedure for maintaining a do-not-call list.[2] The court, along with two others in the Northern District of Texas, rejected the argument that because Section 64.1200(d) was promulgated under Section 227(d) of the TCPA, which does not contain a private right of action, no right of action exists.

Additionally, the Third, Sixth, and Eleventh Circuits have found that Section 64.1200(d) was promulgated to protect privacy rights under Section 227(c), rather than 227(d), of the TCPA, and the private right of action from that section carries over into Section 64.1200(d).[3]

TCPA violations can result in fines starting at $500 per call made (or text sent) without a do-not-call policy in place, and fines can reach up to $1,500 per text for certain violations.

While some thought many TCPA claims would vanish post Facebook, they appear to have taken on a new shape. Companies should consider consulting counsel experienced in TCPA compliance to ensure compliance with Section 64.1200(d).

Special thanks to Madison Etherington for her valuable contributions to this GT blog post.

[1] Facebook, Inc. v. Duguid, _ S. Ct. _, 2021 WL 1215717 (U.S. Apr. 1, 2021).

[2] Powers v. One Techs., Civil Action 3:21-CV-2091 (N.D. Tex. Jul. 28, 2022)

[3] Charvat v. NMP, LLC, 656 F.3d 440, 443–44, 448–49 (6th Cir. 2011); Shelton v. Fast Advance Funding, LLC, 805 F. App’x 156, 157 (3d Cir. 2020)

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