United States: Fight Against Robocalls Is Coming for Telemarketing Text Messages

As reported on the Hunton Retail Resource Blog, on October 20, 2021, a new wave in the fight against “robocalls” is targeting telemarketing text messages. In the past six months, there has been an uptick in activity at both the state and federal level to reign in telemarketing text messages.

On July 1, 2021, Florida’s “mini-TCPA” went into effect. The mini-TCPA amends Florida’s Telemarketing Act in several key ways, most notably in allowing consumers to maintain a private cause of action for violations of the act. The Telemarketing Act already included “text message” within the definition of a “telephonic sales call.” But the new mini-TCPA has had a tremendous impact on companies who use text messages for telemarketing purposes because the mini-TCPA now requires prior express written consent before sending a telemarketing text message, even if the text message is sent (1) in response to a call initiated by the consumer or (2) to a consumer with whom the company has a prior existing business relationship. Indeed, in the three and a half months since the mini-TCPA became law, there have been at least 42 lawsuits alleging violations of the mini-TCPA. Of those 42 lawsuits, 38 related to a consumer’s receipt of text messages and all were filed as putative class actions.

On July 13, 2021, 13 days after Florida’s mini-TCPA became law, former New York governor Andrew Cuomo, signed a bill into law, which amended New York’s General Business Law 399-z to include the term “electronic messaging text” in the currently existing definitions of “telemarketer,” “telemarketing,” and “telemarketing sales call.” In so doing, Governor Cuomo explained that the amendment was necessary in order to “close this annoying loophole” and protect New Yorkers from “unwanted texts attempting to sell [consumers] things they don’t want.” The amendments became effective on August 12, 2021. Litigation is expected to likely to pick up in the near future, though no lawsuits alleging violations of this statute have been identified as of yet.

On August 20, 2021, the House of Representatives Committee on Oversight and Reform (the “Committee”), sent a letter to the FCC asking the FCC to clarify what acts it intends to take to reign in “spam texts.” In their letter, the Committee expresses its concerns that bad actors will shift their attentions to the use of “spam texts” in order to avoid the FCC’s recent mandates targeting robocalls.

On September 24, 2021, Senator Richard Blumenthal sent a letter to the FCC urging it to “take action on the recent surge of unsolicited text messages that are overtaking robocalls as a nuisance and a consumer protection threat.”

This increased focus on text messages is expected to continue, both at the state and federal level.

View on the Hunton Privacy & Information Security Law Blog.