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Don’t Get Sued For Sending Text Messages


Do you send text messages to customers as part of your business? If you are, be very careful—you could be setting yourself up for liability and lawsuits under the Telephone Consumer Protection Act (TCPA) which prohibits a whole range of activities, such as calls to landlines, calls to cell phones, facsimiles and text messages.

Expensive Lawsuits From Texts

The rules for all communications under the TCPA are somewhat different, but today, with text messages being so popular, TCPA lawsuits for unsolicited or unwanted text messages are very common. They are also costly, if the law is violated–the law allows aggrieved consumers to sue for between $500-$1,500 per communication (call, text, or fax). There is no maximum cap on the total amount of damages that a consumer can recover.

Get Express Consent First

The general rule is that you should never send text messages to anyone, unless you have their written permission.

Just because someone is a customer of your business, or because there is some kind of established business relationship, doesn’t give your business permission to send a text message to customers, clients, or the general public. In fact, even signing up for a mailing list, or consenting to receive “more information,” doesn’t constitute express consent for someone to receive text messages from you.

You can be liable, even if you hire someone else to send your text messages, or to conduct your marketing campaign for you. You cannot hide behind a third party, or claim that you had no idea that your marketing company was going to blast people with text communications.

Don’t Exceed the Scope

You don’t even have to be sending advertisements—any type of texting without permission can lead to liability. In fact, you can even get in trouble for exceeding the scope of permission that a consumer provides.

For example, if a customer agrees to receive text messages about “the status of my order,” and you send that customer status updates, but also send marketing texts, you are violating the scope of consent and can be liable for the unwanted messages under the TCPA.

Federal courts are split over whether one text message is enough for you to be liable for damages under the TCPA–for example, a text that asks a consumer “can we continue to text you?” Because of the split, businesses that deal with customers in more than one state should be very careful about text messages.

Revoking Consent

Consumers who agree to get text messages, but then later change their mind, can revoke their consent. The revocation can be done orally, unless the original contract between the parties requires that revocation be done a different way (something to remember when you are drafting clauses that ask consumers for consent to text them).

Call the West Palm Beach business litigation attorneys at Pike & Lustig today if you have a question about a legal issue or related to any state or federal business laws.




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