Ronald S. Weiss
Telephone Consumer Protection Act and unwanted/unauthorized Text Messages
We all get those annoying calls and texts that are either scams or unwanted solicitations. The Telephone Consumer Protection Act (TCPA) generally protects consumers from certain actions by unwanted callers. What about unauthorized and unwanted text messages? The simple answer is that unauthorized text messages may be actionable. The TCPA 47 U.S.C. § 227(c)(5) gives consumers a right to bring an action against the party sending unauthorized texts in certain circumstances.
Beyond the scope of this blog are robo calls or calls made by automatic telephone dialing systems and those leaving artificial or pre-recorded voice messages. We are also not considering unsolicited facsimiles. These communications are part of the TCPA, but they are beyond the scope of this article and they can lead to a lot of other issues.
The TCPA, which is a federal statute, enables a private individual to bring a case if he or she received more than one telephone call from the same person or entity within a twelve-month period.
So far, that seems easy enough, but this article considers unwanted text messages and the TCPA referenced “call”. Accordingly, the next issue we need to consider is whether a text message would be considered the same as a phone call to a cellular phone for purposes of the TCPA. In this situation, the answer is that a text message to a cellular phone qualifies as a phone call under the TCPA, and both are covered. A single text in a twelve-month period is not actionable. There must have been more than one text. In the cases that my office has reviewed, this is usually not an issue, as there are often many texts.
In addition to the TCPA, there is another protection that residential telephone subscribers may want to consider. The federal government maintains a national do-not-call registry for persons who do not wish to receive telephone solicitations. Adding your number to this list helps establish the fact that you do not wish to receive unwanted calls or solicitations.
So if you received these unwanted texts what can you do? This gets tricky and the answer depends on your specific situation. It also depends on who the caller is. For example, the caller could be a business that you have an established relationship with. If that is the case, then there are several issues that can arise. The first question is whether the caller (texter in this article) had consent to send those texts. If there is no consent, then it gets more interesting. The next question is whether there is any type of arbitration agreement. If there is an arbitration agreement, then your rights may be limited to a significant degree.
Now, let’s assume you have received unwanted texts from the same entity within a twelve-month period, you did not consent to those texts and there is no arbitration restriction, then maybe you have something. If you made it this far, the next logical question is what you are entitled to. Under the TCPA, you could be entitled to $500 PER VIOLATION! If the caller (texter) knowingly or willfully violated the law, then you might be entitled to as much as $1,500 PER VIOLATION. There can also be a claim for actual damages. These cases can become hotly contested and very valuable, very quickly. Imagine how quickly the value adds up with the number of unwanted texts.
If you’ve made it this far, and it looks like you have a valid claim, then it is time to decide whether your claim is best presented as a class action or as an individual one. There are many factors that go into this and it is certainly an important consideration to discuss with an attorney. It is important to have attorneys on your side that are familiar with the law and the best way to proceed with your claim. We are proud to protect the consumers and we enjoy these TCPA cases.