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How The TCPA Impacts Text Messaging Marketing | SMS Marketing Blog

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How The TCPA Impacts Text Messaging Marketing

1st November 2012 - Posted by in category Text Message Marketing Advice

Telephone Consumer Protection Act

If you are looking to setup an text message marketing campaign, than it is important that you understand the Telephone Consumer Protection Act (TCPA) or you could face some hefty fines for SMS spam like Jiffy Lube & TextMarks  or the Academy of Design and Technology.

Below is a summary of the Telephone Consumer Protection Act (TCPA) 47 USC § 227 – Restrictions on use of telephone equipment of 1991 as it applies to text message marketing. Customers can view the entire TCPA here.

(a) DEFINITIONS - Many have argued in the past that a text message marketing platform like Tatango isn’t an “automatic telephone dialing system”. In 2007 Judge Claudia Wilken ruled that in the case of Satterfield v. Simon & Schuster, No. C 06-2893 CW, 2007 U.S. Dist. LEXIS 46325 (N.D. Cal. June 26, 2007) SMS text messages are not covered by the TCPA, because the manner in which the SMS messages were sent does not fit the statutory definition of an “automatic telephone dialing system”. This ruling was overturned by the The Ninth Circuit, when they ruled that the TCPA applies to unsolicited cellular telephone text messages advertising the commercial availability of goods or services. You can read this section below.

(1) The term “automatic telephone dialing system” means equipment which has the capacity—

(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B) to dial such numbers.

(b) RESTRICTIONS ON THE USE OF AUTOMATED TELEPHONE EQUIPMENT - This clearly states that you can’t use automated telephone equipement to send messages to anyone within the United States to any telephone number assigned to a cellular telephone unless you have their prior express consent. If found in violation of (b)(1) the receipent can receive $500 in damages for each violation (SMS spam message), and if the court finds that they willfully or knowingly violated (b)(1) then the court can increase the award to an amount equal to not more than $1,500 for each SMS spam message. You can read this section below.

(1) PROHIBITIONS.—It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;

(3) PRIVATE RIGHT OF ACTION – A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—

(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,

(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or

(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

Hopefully this information has helped you understand the Telephone Consumer Protection Act and how it will effect your text message marketing campaign. If you have any questions feel free to contact us or leave a comment below.



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