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More Companies Sued for Illegal Text Messages Under the TCPA


Text messages are an incredibly personal mode of communication. They are immediate, direct, and we are naturally programmed to stop what we are doing and look at our phones when a text message comes in. That’s why it is so bothersome when that text message ends up being an advertisement.

The TCPA Covers Text Messages

The Telephone Consumer Protection Act (TCPA) protects consumers from unwanted advertisements and calls from automatic dialers. What is legal and illegal varies based on whether the phone being called is a land line or a cell phone, but the TCPA almost always makes unwanted text messages from businesses illegal. Consumers can be awarded $500-$1,500 per text that violates the TCPA.

The TCPA considers unwanted text messages to not only be a drain on our wallets, as cell phone plans often charge data for text messages, but also an invasion of our privacy, as an intrusion into our daily lives.

Consent and the TCPA

Consent is an absolute defense to a TCPA claim. This is why when you sign up for services, or sign paperwork (including digitally signing online forms) you may see companies ask you if they can text message you information. In many cases, consent is written into our credit card agreements or hospital admission papers, creating a way for debt collectors to contact us when and if we owe them money.

Still, many businesses ignore consent, and wrongly assume that if you sign up for their product or service, you must have automatically consented to receiving text messages. This is not true, as fitness club chain Planet Fitness is learning.

Planet Fitness is being sued in a class action lawsuit, after the company text messaged club members about a promotion where they could receive a free bottle of water by showing the text they received from the club.

Even exceeding the scope of consent can result in liability under the TCPA. For example, the Buffalo Bills football team was sued when their season ticket holders consented to receiving a set number of text messages per month. The problem was that the Bills franchise exceeded the amount that ticket holders consented to. This was even though the texts informed ticket holders about information concerning the team.

While that result may seem harsh, the point is that even with consent, businesses can’t go past the limits of the consent given.

Autodialing is Necessary

The key to winning TCPA cases requires understanding how text messages are sent by big companies. Because these companies often send hundreds or thousands of texts at once, they usually are automated. For a company to be liable under the TCPA, that automation, which normally requires little or no human intervention, must be used.

Courts do sometimes struggle with how much human intervention will be enough for a defendant to escape liability. That’s why TCPA cases can often turn on technologically complex issues, even if a defendant admits it sent non consensual text messages.

Contact the Miami consumer rights lawyers at the Jacobs Legal today to discuss handling unwanted calls or text messages and to discuss whether you may be entitled to damages as a result of unwanted texts or calls.


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