The TCPA & Text Messages: How To File A Robotext Lawsuit

The TCPA & Text Messages: How To File A Robotext Lawsuit 2021-08-05T22:16:30-04:00
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The Telephone Consumer Protection Act treats marketing text messages just like robocalls - they're both illegal unless you gave your express written consent. Still getting annoying sales texts? You have the power to fight back.

  • File a private lawsuit and pursue compensation.
  • Win up to $1,500 in compensation for each illegal text.
  • Discourage scammers and telemarketers from harassing other people.

To learn more about your legal options, fill out our online questionnaire to learn if you qualify for a robocall lawsuit. Our experienced attorneys can answer all of your questions in a free consultation.

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The Telephone Consumer Protection Act protects consumers by preventing debt collectors, telemarketers and fraudsters from using autodialer technology and pre-recorded voice messages to spam our phones without prior express consent.

Companies who break the law could be on the hook for substantial financial damages, including between $500 and $1,500 per illegal phone call. But the law was also written in 1991, several years before text messaging became technologically-feasible and decades before it became standard practice.

Text Message Advertising Laws

Thankfully, in 2003, the Federal Communications Commission issued a new guidance to clarify the situation. At the time, the use of text messages was beginning to skyrocket. By 2007, texting would become the main thing people used their cellular data for, with upwards of 80% of the world's cell phone owners relying daily on the Short Message Service (SMS) technology that makes texting possible.

Woman Texting On Cellphone

But back in 2003, texting was just taking off. Telemarketers, however, had already noticed the technology's benefits. Soon, businesses, marketers, debt collectors and scam artists were using automated software and machines to "robotext," spamming cell phones with intrusive, usually unwanted, pre-written text messages to sell them things or trick them into opening up their wallets.

FCC Text Message Regulations

It was a big problem, so the Federal Communications Commission stepped in to clear up any confusion. The Telephone Consumer Protection Act (TCPA) restricts the use of autodialer systems, whether those systems are being used to send voice calls or text messages. In practice, texts are treated just like calls to a cell phone for the purpose of litigating and enforcing the law.

TCPA Rules For Autodialer Systems

As written, the TCPA prohibits the use of autodialers (and pre-recorded or artificial voice messages) to send any message to a cell phone number without the owner's express prior consent. Clearly, that prohibition includes text messages, along with messages sent to a pager.

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The Telephone Consumer Protection Act restricts the use of autodialers, or "automatic telephone dialing systems." An autodialer is simply a machine or computer program that can store phone numbers and dial them automatically, without a human having to do anything.

Importantly, the definition isn't limited to machines or programs that dial phone numbers in order to play a voice message, or connect the person who answers to a live representative. Autodialers that send text messages are included, too.

Robotext Violations Under The TCPA

So what kind of text messages are illegal? In practice, almost every "robotext" sent using an autodialer is illegal, unless you've given the company prior express consent to send them. The question, in reality, is pretty simple.

Did you receive a text message from a company or other entity who you never gave permission to text you? That was probably illegal. It's even illegal to accidentally text the wrong number.

Are You Receiving Illegal Text Messages?

The vast majority of companies that send text messages use autodialers. That means the Telephone Consumer Protection Act almost invariably covers every text message that you've ever received from a business, either small or large. And, according to the TCPA, businesses aren't allowed to send you robotexts without your prior express consent. There are only two general exceptions to this rule:

  1. text messages made for emergency purposes
  2. text messages sent to collect debts "owed to or guaranteed by the United States" government

Chances are, the unwanted text messages that you're receiving don't fall into either one of those categories. So what can you do about it? Most of us probably just ignore the message, delete it or get irritated for a second and then go on with our lives. The Telephone Consumer Protection Act, though, wants you to do something about illegal robotexts.

Your Right To File Suit & Win Damages

The law creates a private cause of action for anyone who has received a robotext that they didn't consent to. In short, you can sue the company or person who sent you the text for financial damages. And those damages can be substantial.

The TCPA allows you to recover $500 for each illegal text message you were sent, or $1,500 per text if the message was sent in "willful and knowing" violation of the law. A class action TCPA lawsuit filed on behalf of hundreds or thousands of consumers could net millions of dollars in compensation.

What Does "Prior Express Consent" Mean?

While the concept of "prior express consent" isn't defined in the Telephone Consumer Protection Act, the FCC, along with most courts, have concluded that it should mean giving either written or oral consent to receive calls or text messages at a particular phone number.

In some instances, courts have found that simply providing a company with your phone number is an act of consent that allows them to robotext you, but most courts aren't that lenient. In most cases, giving a business your phone number isn't enough to consent, even if you're an existing customer.

Opting-In To RoboTexts

The majority of courts have taken a narrow approach to this problem, saying a person must consent specifically to the receipt of automated text messages. In either case, you have to "opt-in" to receiving autodialed text messages and your consent has to be unambiguous. While businesses are presented by a number of options to secure express consent, they always have to be straight-forward about it, so the consumer knows what she's getting herself into.

Consent can't be mixed, either; it has to be unadulterated. Consent to receive receipts or overdraft notifications on your cell phone? That's not the same as consenting to receive text messages that contain marketing.

Advertisers can't just get your consent to send one sort of message, then turn around and send you something totally different. You need to consent, very specifically, to the specific type of messages that they're sending you.

Written Consent For Marketing-Related Robotexts

Moreover, a newer rule established by the FCC in 2013 puts an even higher standard in place when a robocall or robotext includes marketing or advertising messages.

In these cases, companies need to obtain prior express written consent before sending out a robotext, although there are exceptions for certain health care communications and text messages sent by non-profit organizations. In 2012, the FCC provided clarification on what constitutes written consent.

To clear this hurdle, telemarketers, debt collectors and other companies need to ask you to authorize the delivery of autodialed marketing text messages to a specific cell phone number.  The authorization must be signed (electronic signatures are fine) and it needs to include a statement that you are not obligated to provide your consent in order to purchase goods or services from the company. Sending a marketing-related robotext without first obtaining the consumer's written consent is illegal.

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