The Telephone Consumer Protection Act—a law passed in 1991 to curb abusive telemarketing practices-originally did not cover cell phones via text message. This was only because such a method of communication did not yet exist. In 2009, however, the Act was expanded to include text messaging. Now, two new mobile texting technologies, friend forwarding and group texting, are changing the legal landscape for mobile marketers. Coincidentally, consumers have recently filed hundreds of class action lawsuits under the law citing unwanted texts and violation of privacy—and many consumers are getting large payouts in settlements.
Most companies understand what it takes to run a legal text-based mobile campaign under the TCPA’s mandate: clear disclosure and consent or opt-in by the consumer to receive such messages. However, friend forwarding and group texting are muddying the waters. Group texting enables users to sign up their friends to receive non-commercial text messages for purposes of communicating and staying in touch. These cases raise questions about the meaning of prior express consent under the TCPA, which the Act does not define. Companies using group texting have petitioned the Federal Communications Commission (FCC) for a ruling clarifying the meaning of prior express consent. So far, however, the FCC has stayed silent.
Group texting and friend-forwarding suits are not the only problems. Several companies have been faced with what are coined confirmatory text class action lawsuits that allege that receipt of a text message confirming a former subscriber’s request to opt out is an unsolicited text message violating the TCPA.  It is becoming apparent that lawsuits involving mobile texting technology are here to stay. Companies considering using any new technology for marketing campaigns should carefully review all the possible legal implications. Consumers who are faced with unwanted commercial text messages have avenues of recourse.
