The Telephone Consumer Protection Act (TCPA) [47 U.S.C. § 227]
Text Messaging. All marketing through telephonic devices, including mobile phones, is controlled by the Telephone Consumer Protection Act (TCPA) passed in 1991, which falls under the FCC’s jurisdiction. The TCPA allows individuals and private lawyers to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls, auto dialed calls, or text messages. Marketing through telephonic devices, including mobile phones, is covered by the TCPA. Purely informational calls and calls for noncommercial purposes are exempt but dual-purpose calls may be covered. Consent Necessary for Commercial Text Message. Commercial Text messaging is gaining in popularity, in large part because texting has proven to be one of the more effective and targeted forms of marketing. The TCPA applies to both voice and short message service (SMS) text messages if they are transmitted for marketing purposes. The FCC has added regulations to the TCPA so that, effective October 2013, prior express written consent is required for all autodialed and prerecorded calls or text messages made to a cell phone or mobile device and prerecorded calls made to residential land lines for marketing purposes. Electronic or digital forms of signature are acceptable for compliance with this consent requirement. The consent must be “unambiguous,” meaning that the consumer must receive a “clear and conspicuous disclosure” that he or she will receive calls that deliver autodialed or pre-recorded telemarketing messages on behalf of a specific advertiser, that his or her consent is not a condition of purchase, and he or she must designate a phone number at which to be reached. It is a best practice for advertisers to maintain each consumer’s written consent for at least four years, which is the federal statute of limitations to bring an action under the TCPA. The FCC eliminated the “established business relationship” exemption so that advertisers can no longer rely
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