TCPA, Texts, & Texas

People within the marketing industry generally agree that a phone number is more valuable than an email address. SMS (Short Message Service) marketing leads to significantly higher response and open rates. Consumers often have email addresses attached to their jobs which may go unchecked and unused when they join other companies. However, their phone number will likely stay the same. 

The telemarketing industry utilized phone numbers before there was email, and they continue to do so because they understand how valuable a phone number is. Their challenge is connected to marketing goods and services through SMS while maintaining compliance with the TCPA. The Federal Communications Commission (FCC) created the TCPA to regulate how telemarketers send calls, faxes, and texts. And although we’ve mentioned emails, the TCPA does not pertain to them. 

Regarding texts and calls, telemarketing companies must obtain consent, disclose their marketing terms, and provide a way for consumers to opt out. Failing to follow the provisions of the TCPA may result in actions and monetary damages for each sent text. 

What Does This Have to Do With Texas?

The compliance challenges that telemarketing companies face are substantial. Not only do compliance laws evolve almost as quickly as technological advancements, but state laws may sometimes contradict the TCPA as well. This is why we are discussing Texas. 

The TCPA directly addresses and regulates the use of text messaging. During a civil lawsuit in Texas (Powers v. One Technologies), the court stated that text messages did not qualify as telemarketing under the state’s license requirements. 

Why Doesn’t Texas View Texts as Calls?

It comes down to three things:

  • The license that Texas telemarketers must obtain
  • The definition of the word “call”
  • Texas’s Business and Commerce Code

In Texas, telemarketers must get a registration certificate from the Secretary of State. Although we are intentionally using broad terms, it applies to salespeople who try to sell goods or services through phone calls. The issue is that the Business and Commerce Code has two separate definitions of what a “call” is. Chapter 304 was amended in 2009 to include text messages, images, and graphic messages. Chapter 302 makes no mention of texts, nor does it define what a “call” is. 

Simply put, the defendants claimed that they followed Chapter 302, whereas the plaintiffs argued that the definition of a call in Chapter 304 extended to Chapter 302. The court concluded that because of Chapter 302 of the Business and Commerce Code, a text did not fall under the call umbrella. Hence, any text messages the defendants sent were not violations of it. 

Speak With a Telemarketing Attorney 

At Cove Law, we have decades of experience assisting clients with compliance issues stemming from the TCPA and state entity and salesperson licensing throughout the country. If you have any additional questions, contact Cove Law for a free initial consultation.

Andrew Cove
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