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The TCPA and Unwanted Text Messages

Adam J Krohn / Posted: 2013-05-15 11:26 am

The Telephone Consumer Protection Act ("TCPA") prohibits, under 47 U.S.C. Section 227(b)(1)(A), "any call" made by an automatic telephone dialing systems ("ATDS") to all cellular telephone services, unless it was made for (1) emergency purposes or (2) was made with prior express consent by the party called. This is applied to text messaging even though the TCPA was enacted prior to text messaging being a reality.

The rules under the TCPA and the Federal Communications Commission ("FCC") ban many text messages that are sent to mobile phones using ATDS. The ban applies even if the mobile phone number has not been placed on the national Do-Not-Call list.

The TCPA is supplemented under the CAN-SPAM Act. This law bans unwanted email messages (which can sometimes appear as texts) that are sent to mobile phones provided they are "commercial messages." Commercial messages are defined as messages that are sent primarily to advertise or promote a commercial service or product. Federal rules require that commercial email messages sent to a mobile phone:

  • Clearly identify that the message is a solicitation or advertisement for services or products
  • Provide an easily-accessible, legitimate, and free way to reject future messages from the sender
  • Provide a legitimate return e-mail address and the sender’s postal address

As with commercial telephone calls, texts and commercial email messages may be sent to mobile phones if the recipient of the messages has agreed to receive them. Consent to receive text messages must be in writing. Consent for commercial email sent to a cell phone can be either written or oral.

The FCC has ruled however that marketers are not in violation of the TCPA when they send a single confirmation text message that a consumer has opted-out of receiving marketing text messages. They are considered different from general marketing communications and therefore do not fall under the same rules. Text messages confirming that a consumer has opted out of future messages must follow certain rules.

  • The confirmation text needs to be sent within five minutes of the opt-out request
  • The confirmation text cannot include information other than the confirmation (no marketing or promotional information and it cannot encourage the consumer to call or contact the seller in any way)
  • No follow-up communications in any form are permitted

How to Stop Unwanted Texts to Your Mobile Phone

  • Do not display mobile phone numbers or email addresses in public
  • When giving out mobile phone numbers, email addresses, or other personal information, make sure that the entire transmitting form is read through and understood
  • If a source is questionable, do not respond to unwanted texts
  • Check options to block future text messages from a specific sender with mobile service providers
  • Use an email filter
  • Consider having two email addresses (one for personal messages and another for other more public uses)

Complaints can be filed with the FCC if a consumer receives:

  • An unwanted commercial email message on your mobile phone
  • An autodialed or prerecorded telephone voice message or text message on your mobile phone when you did not consent to receive the message (whether the message was sent by using an autodialer can be determined by the FCC)
  • If an autodialed text message is sent without prior consent to any wireless device from a telecommunications company or advertising a telecommunications company’s services or product

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Tags : Recent Articles, Tcpa, Telephone Consumer Protection Act

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