In a recent piece, we discussed a decision by the first federal appellate court to rule that there is no private right of action under the Telephone Consumer Protection Act (“TCPA”) for the receipt of text messages (“SMS Message”). While this decision certainly was a win for the marketing industry, it should be noted that this does not mean that marketers have free reign to send consumers unsolicited SMS Messages and avoid potential TCPA liability. Below, we discuss the future of the TCPA, SMS Messages, and what companies should do if they engage in SMS Message-based marketing.
Interplay Between The TCPA and SMS Messages
As our readers know, the TCPA confers a private right of action to anyone who receives more than one “telephone call” within any 12 month period from or on behalf of the same entity. Until recently, the meaning of “telephone call” under this subsection of the TCPA was understood to extend to SMS Messages. While federal district courts were split as to whether or not
