Consent Requirements for Federal Text (SMS) Message Spam Laws to Change in October of 2013

The federal government is poised to implement new, stricter consumer consent rules designed to “further reduce the opportunities for telemarketers to place unwanted or unexpected calls to consumers.”  The rules will apply to all companies in the U.S. who contact their customers through short-messaging service (“SMS” also known as “text messaging”).   The new text consent rules go into effect October of 2013 and will be enforced through the federal court system, both by class-action attorneys, the Federal Trade Commission (FTC), and state attorneys general.  

The new rules will have a considerable impact on any individual, company, or industry engaged in commercial SMS marketing.  Under the original consent rules, established in 1992, text message recipients implied consent to receive commercial message simply by volunteering a phone number at the point of sale.  The new rules will soon require companies and individuals to establish a paper trail that shows SMS recipients provided prior express written consent to receive text messages.  Other important changes include time-of-day restrictions and opt-out requirements. 

The decision leaves numerous legal questions unresolved.  Courts in California are considering a “common carrier” exception to the prior express written consent rule, and companies have petitioned the Federal Communications Commission to make the exception official.  The outcome on a major class-action lawsuit will turn on this exception, which should also have an impact on compliance requirements for companies across the U.S. 

If your company is considering compliance strategies, considering how best to adjust to the new SMS spam rules or has been sued in a TCPA SMS spam class action lawsuit, please contact us or review a summary of our TCPA practice area.

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