The FCC and the FTC each administer and enforce various aspects of the TCPA. State attorney generals also have enforcement authority.
Private plaintiffs have the right to sue for violations. Remedies include penalties of $500 per violation or actual damages, whichever is greater. Treble damages are available for willful or knowing violations.
A call under the TCPA "encompasses both voice calls and text calls to wireless numbers, including, for example, short message service (SMS) calls."
- FCC Report & Order dated July 3, 2003
A text message is a "call" within the meaning of the TCPA. - Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) - Abbas v. Selling Source, LLC, 2009 WL 4884471 (N.D. Ill. Dec. 14, 2009) - Joffe v. Acacia Mortgage Corp., 121 P.3d 831 (Ariz. Ct. App. 2005)
Company A and Company B are not commonly controlled. Instead, they have a direct or indirect contractual relationship. Consumer agrees to receive messages from Company A and its "affiliates and brands." Company B sends Consumer a message promoting its products that says it is "Powered by Company A." Consumer has not consented to receive text messages from Company B.
- Satterfield, 569 F.3d 946 (9th Cir. 2009)
Mobile marketing practice tips: - Carefully tailor opt-in consent language. - Obtain indemnification against liability for lack of express consent when using mobile marketing lists from third party vendors.
In evaluating whether the equipment used to send a text message qualifies as an "automatic telephone dialing system" under the TCPA, courts focus on the equipment's capacity to be used as an autodialer.
The law changes often. No representations are made about the accuracy of the information contained in this presentation which may be incomplete, incorrect, or out-of-date.
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