consent for text messages

In the last few days, the trade press has been full of stories about a settlement of a lawsuit brought against a large broadcaster for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Given that the settlement was for $8.5 million, it has commanded lots of attention. While much of this attention seems to suggest that this is a new obligation, we wrote about this issue last year, warning broadcasters of the potential for big liability if they did not pay attention to the requirements of the rules. The rules prohibit “telemarketing” calls or texts using an “autodialer” unless the recipient has explicitly consented to receive such messages.  In the recent decision, the broadcaster allegedly responded to texts sent to enter a contest with reply texts containing advertising messages unrelated to the contest. 

While TCPA rules are written by the FCC, this is one of those few rules where a violation can not only bring penalties from the FCC, but also there is a “private right of action” by people who receive unwanted calls or texts – i.e. they can sue a broadcaster who contacts them in a manner that violates the act.   And there are law firms that specialize in this litigation, even putting together groups of plaintiffs to bring actions against alleged violators – seeking damages including statutory damages (meaning that no real injury needs to be proven).  So just what does the TCPA cover? Here is what Josh Bercu, an attorney in my firm, wrote last August:

The TCPA is a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are contained in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper releases are not obtained, and collecting text addresses from contest participants and adding them to station databases can similarly be problematic.   Because violations of the TCPA can result in civil liability of $500 to $1500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act.  While the recent Order provided some specific relief in limited circumstances to businesses, it leaves many well-intentioned companies, including broadcasters, at risk as they try to contact their viewers and listeners. Below we address some commonly asked questions about how the TCPA may apply to broadcasters.
Continue Reading Using Text Messages in Promotions and Contests? – $8,500,000 Settlement Provides Reminder to Make Sure You are Aware of TCPA Obligations