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Restrictions exist on text-messaging customers

November 15, 2010

Dealers who want to reach customers, prospective customers, or others via "text messaging" first must consider the legal landscape. That landscape was crafted before the days of text messaging, and the federal agencies and the courts are struggling to apply those old rules to this new technology.

A text message may be deemed to be a phone call, an e-mail, or perhaps even both under federal law. As a result, text messages potentially are subject to a number of federal restrictions.

The Telephone Consumer Protection Act generally governs phone calls. The TCPA and the Federal Communications Commission implement regulations that govern "telephone calls" without defining that term. The FCC, however, considers text messages to be "phone calls." Under the TCPA—and at least one court that reviewed the issue concurs—this has several implications:

• You cannot send a text message "solicitation" to a phone number that is on your company-specific "do not call" (DNC) list.

• You also cannot send a text message "solicitation" to a phone number that is on the national DNC list (subject to the "established business relationship" and other provisions of the national DNC rules).

• You cannot send any text message whatsoever to a cellular telephone number—solicitation or not, whether the number is on a DNC list or not—using an "automated dialer system" unless you have obtained the called consumer’s "prior express consent."

This general ban applies to all text messages sent without consent, including sales pitches, service reminders, and communications with current customers.

What is an "automated dialer system"? It is defined as "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." This TCPA definition of "automated dialer system" may cover computers used to send automated text messages.

That means the FCC may consider any text sent by a computer to be improper under the TCPA (unless you have the consumer’s prior express consent).

On a related matter, the Federal Trade Commission increased its annual fee to access the DNC Registry. Effective Oct. 1, it costs $55 for each area code, up from $54 in the government’s last fiscal year.