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SMS Marketing Best Practices

Judge – SMS Providers Exempt From TCPA Liability

Mar 09, 2015

TCPA Text Message Marketing

Our good friend Michael B. Hazzard from Arent Fox LLP, the same guy that co-authored with Tatango the complete guide to TCPA compliance in SMS marketing, recently obtained a pretty monumental summary judgment for their client, another SMS marketing provider. The summary judgement obtained by a federal judge ruled the cloud telephone service provider that they represented, could not be liable in a class action lawsuit that claimed the SMS marketing provider violated the federal Telephone Consumer Protection Act (TCPA).

So what does this ruling mean for SMS marketing, or more importantly your SMS marketing campaign? In short, this ruling states that SMS marketing providers are classified as “common carriers”, and therefore no longer liable in class action lawsuits that claim a violation of the Telephone Consumer Protection Act (TCPA). This is new thinking, as it was only in 2012 that TextMarks, another SMS marketing provider, was held responsible along with their client Heartland Automotive, when they helped their client send SMS spam to over 2.3 million mobile phone numbers, generating the largest known SMS spam lawsuit settlement of $47 million.

TCPA Lawsuit

How can you tell if the SMS marketing provider you’re using is a “common carrier”, and therefore exempt from liability in a class action lawsuit that claims a violation of the TCPA? It’s actually pretty simple, and requires you to answer “yes” to both of the following questions about your SMS marketing provider.

  1. Does your SMS marketing provider provide services to the public at large under the same terms and conditions?
  2. Does your SMS marketing provider allow a customer to transmit messages of the customer’s own design and choosing?

Based on the two qualifications above for an SMS marketing provider to be classified as a “common carrier”, you’ll realize that most SMS marketing providers would be classified as “common carriers”, therefore they’d be exempt from liability in a class action lawsuit that claims a violation of the TCPA.

If your SMS marketing provider isn’t responsible for TCPA violations, who is? Your business is 100% responsible for TCPA violations. Being that TCPA violations can cost your business as much as $1,500 per unwanted text message, it’s essential that your business pay attention to the TCPA requirements when running an SMS marketing campaign.

How can your business ensure that your SMS marketing campaign is fully TCPA compliant? We’ve got you covered here at Tatango (even if you’re not a Tatango client), with the following FREE resources to help your business both understand the requirements of the TCPA, and how to implement these requirements in your SMS marketing campaigns.

Want to schedule a free TCPA assessment with one of Tatango’s SMS marketing experts to discuss TCPA compliance? Contact our team.


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