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TCPA Text Message Marketing Litigation Outlook


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The following blog posts discusses the outlook of text message marketing TCPA litigation in 2019. Examining past and present trends, we look ahead at the future of TCPA lawsuits. 


About TCPA Litigation

For almost thirty years, the Telephone Consumer Protection Act (TCPA) has governed the world of text message marketing. Per the TCPA, brands may only contact subscribers who have opted in to receive communication from them. If a brand violates TCPA requirements, it could face fines of up to $1,500 per text. 

TCPA laws are among the most litigated in the United States. And because fines grow exponentially with large SMS campaigns, lawsuits can become very expensive. Until 2017, the number of TCPA lawsuits was skyrocketing. However, there’s been a 15 percent drop in cases recently. Although we can expect this trend to continue in 2019, the issue is more complicated than it may seem. 


Why TCPA Lawsuits Are Declining

SMS marketing continues to grow year over year. Amid this growth, it might seem encouraging to see the number of TCPA lawsuits decreasing, but there’s no evidence to indicate professional TCPA plaintiffs are going away. There are two reasons we should examine this further. 

First, more brands are increasingly aware of the potential damages they’ll face if they violate TCPA laws. Marketing companies and campaigns have been more proactive by hiring TCPA attorneys and operating solidly within the rules. Messaging a customer without their consent is a considerable risk, and more brands are taking a conservative approach to the law. At Tatango, we approve of this encouraging change. 

Many companies have also added arbitration clauses to their contracts, which means lawsuits will be settled privately. Keeping these cases out of public record results in lower statistics around TCPA lawsuits. TCPA litigation is still happening and may even be increasing, but arbitration cases skew the numbers. Many brands prefer to avoid publicity, which could explain the recent shift. 


Other Upcoming Changes

The Federal Communications Commission (FCC), the regulatory body that enforces the TCPA, faces several other vital issues. The D.C. Circuit Court has ordered the FCC to create clear guidelines such as defining autodialing systems and specifying a reasonable way for consumers to opt out of campaigns. Until the FCC provides detailed guidelines, judges and courts are free to interpret parts of the TCPA as they see fit, and brands are left to navigate these laws independently. We hope to see progress and change in 2019. 

Even after the FCC establishes more explicit definitions and interpretations of TCPA rules, it will take some time for all SMS and phone marketing companies to adjust their practices. We recommend working with TCPA attorneys whose knowledge and guidance can not only help you follow the rules but also safeguard against potential TCPA litigation.


Work with Tatango to Ensure TCPA Compliance 

Tatango has been an industry leader for more than 13 years, and our text message marketing platform includes tools and features that help ensure you meet TCPA requirements. Our team of experts is ready to help—contact us today.

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