Text Message Solicitation: The Case of Club Texting
The Telephone Consumer Protection Act of 1991 restricts telephone solicitations (i.e. telemarketing). The TCPA prohibits solicitors from, among other things, sending unsolicited faxes as well. In the event of a violation of the TCPA, a subscriber may sue for up to $1,500. In addition, the subscriber may seek an injunction. A 2009 ruling held that the TCPA applies to unsolicited cellular text messages advertising the commercial availability of goods or services as “calls” made in violation of the act. The ruling effectively held text messages are treated similar to faxes and that solicitors cannot send prohibited marketing messages via either communication channel unless following the strict guidelines (i.e. between 8am-9pm, no pre-recorded messages, contacting customers on the “do not call” registry, etc.).
What is Fax or Text Broadcasting?
A “text broadcaster” is a person or entity that transmits SMS text messages to mobile telephones on behalf of another person or entity for a fee. A “fax broadcaster” transmits faxes in the same fashion. In other words, a text or fax broadcaster provides a platform for organizations to communicate with a large number of subscribers. For example, President Obama, arguably one of the most tech-savvy presidents, used a text broadcaster service during his campaign. Many of us receive text messages from our banks, cell phone providers, stores we’ve visited, or groups to which we’ve subscribed. All of these mass communicators use a “text broadcaster” to send those texts.
Club Texting and the Recent FCC Ruling
Club Texting is one of the many vendors providing text broadcasting services to its clients. Federal regulation states that the TCPA imposes liability to fax broadcasters only when the broadcaster “demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such [fax] transmissions.” In a recent ruling, the FCC held that the standard for sending text messages is broader than that applied to fax broadcasters.
The law explains that the determination as to if the text broadcaster is liable as the “sender” of an unauthorized text message broadcast on behalf of a third party considers several factors, including:
- Whether the text broadcaster took necessary to physically send the text message; and
- the extent and nature of involvement of the broadcaster (i.e. the provider or the platform)
Unlike clients (senders) of fax transmission, it’s not only the clients who may retain control of the messages, both with regard to the construction and maintenance of subscriber lists and the content and frequency of messages. Thus, text broadcasters are often not exempt from liability under the TCPA. If you receive unwanted text messages in violation of the TCPA, contact one of our experienced consumer rights lawyers for a free consultation. Please call 866-726-1092 or send us an email now. We handle all of these type of cases on a contingency basis.