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Here are the answers to the two most common questions we get about the law which allows you stop spam text messages being sent by an SMS spammer by making the SMS spammer pay you. This is your right under Federal law, specifically the TCPA (TCPA stands for the Telephone Consumer Protection Act). SMS marketing has become the darling of the marketing community, but if you haven’t consented to receive their marketing text messages, and if your mobile number is on the Federal Do Not Call list, they are violating Federal law (the TCPA).
The two most common questions that we receive are “Does the TCPA really apply to SMS messages (i.e. text messages), even though the TCPA was passed before SMS messaging was around?” and “Does the TCPA even apply to political text message spam?” Here are the answers, along with official citations drawn from official FCC documents (we provide the actual documents below, as well).
Does the TCPA Apply to SMS Messages Such as Text Message Marketing Spam?
Even though the TCPA was passed in 1991, a year before SMS messaging even became possible, it has been consistently held that the TCPA applies to SMS messaging (i.e. text messages). More to the point, the Federal Communications Commission (FCC), which is the agency under which enforcement of the TCPA falls, has specifically held that:
“The TCPA’s consent requirement applies to short message service text messages (“SMS” or “text message”) in addition to voice calls.” (FCC Declaratory Ruling and Order, June 18, 2015 at Page 18, Paragraph 27)
Additionally, in the same document, in response to a request by Glide Talk for a declaratory ruling, the FCC says “Glide raises the issue of whether SMS text messages are subject to the same consumer protections under the TCPA as voice calls. We reiterate that they are.” (FCC Declaratory Ruling and Order, June 18, 2015 at Page 56, Paragraph 107, emphasis ours)
Does the TCPA Apply to Political Text Message Spam?
Yes, it does! The FCC Rules for Political Campaign Calls and Texts make explicitly clear that “Robotexts – text messages generated through autodialing – are also considered a type of call and fall under all robocall rules. As text messages generally go to mobile phones, robotexts require the called party’s prior express consent. However, political text messages can be sent without the intended recipient’s prior consent if the message’s sender does not use autodialing technology to send such texts and instead manually dials them.” (FCC Rules for Political Campaign Calls and Texts)
The bottom line here is that the TCPA prohibits both “autodialed” and/or “prerecorded” text messages even if they are political messages if they are sent without express consent of the person whose mobile number it is (and that number is on the Do Not Call list). To our knowledge nobody has definitively defined what constitutes a “prerecorded” text message. However we would argue that if it’s boiler plate, i.e, copy and pasted, and not manually typed in individually each time, then for political text message purposes that still violates the TCPA. We would also argue that the presence of “Send STOP to stop receiving these messages” indicates that it is ‘prerecorded’ and probably also “autodialed”.
To support this, the FCC, in that same document, states, among other things, that “We conclude that the equipment used to originate Internet-to-phone text messages to wireless numbers via email or via a wireless carrier’s web portal is an “automatic telephone dialing system” as defined in the TCPA, and therefore calls made using the equipment require consent. We agree with commenters who argue that such equipment meets the first element of the autodialer definition because it has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. Wireless phone numbers are a necessary and unique identifier in each Internet-to-phone text message sent to a wireless recipient. The record confirms that Internet-to-phone text messaging campaigns have purportedly sent tens of thousands of such messages to wireless consumers. The equipment used to send these messages thus must necessarily store, or at least have the capacity to store, large volumes of numbers to be called, and nothing in the record suggests otherwise. CTIA states that “the equipment ‘stores’ and ‘produces’ the wireless telephone numbers to be called, and it does so using random or sequential number generators to populate potential domain name addresses. Even assuming that the equipment does not actually use a random or sequential number generator, the capacity to do so would make it subject to the TCPA.” And “We also agree with commenters that such equipment has the capacity to dial numbers and thus meets the second element of the TCPA’s autodialer definition.”
The Bottom Line
The bottom line is that so long as your mobile phone number has been registered with and on the Federal Do Not Call list (at DoNotCall.gov) for at least 30 days, marketers and politicians are required to obtain your affirmative consent before texting you with a commercial or political message. If they don’t, you can go after them under the TCPA’s private right of action and make them pay you fines of up to $1500 per message.
You can read the full FCC Rules for Political Campaign Calls and Texts here.
The FCC Declaratory ruling is here:FCC Declaratory Ruling on SMS and TCPA