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Link to Telemarketing and Texting Telemarketing and Texting
Telephone and text message marketing poses private litigation risks and regulatory hurdles that should be considered before any campaign. The Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and states enforce do-not-call (DNC) laws and impose multiple other requirements regarding calling manner, disclosures, consent, opt-out, calling hour limits, caller identification, and telemarketer registration. Calls and texts made to cell phones through the use of certain types of dialing technology (including autodialers) and prerecorded messages (so-called robocalls) require particular attention, as much of the enforcement and litigation in this area involves texting and robocalling.
Historically, private litigation and class action lawsuits and demands have focused on FCC rules under the Telephone Consumer Protection Act (TCPA) that require companies to have “prior express written consent” before using an autodialer to call or text a cell phone for marketing purposes. In 2021, the Supreme Court held that the TCPA’s definition of “autodialer” is narrower than previously interpreted However, lawsuits alleging DNC violations under the TCPA continue.
In addition, various states have adopted autodialer definitions under their own laws, which appear to be broader than the TCPA’s definition. For example, Maryland’s Stop the Spam Calls Act took effect on January 1, 2024 and prohibits call and text solicitations made with an “automated system” without the prior written consent of the called party. The Florida Telephone Solicitations Act (FTSA) that went into effect in July 2021 remains heavily litigated.
Additionally, marketers that have obtained consent might be liable for calling a number that was reassigned to a new subscriber who didn’t consent. New applications that integrate group messaging and texting services might also be subject to the FCC’s consent requirements.
In January 2024, the FTC issued a rule restricting forms of lead generation involving texts and calls to consumers by requiring one-to-one consent for “robotexts” and “robocalls.” Effective January 27, 2025, the consent provided by a consumer may authorize no more than one identified seller to deliver telemarketing or text messages. The agency continues to strengthen consumers’ ability to revoke consent to receive such calls and require marketers to honor such requests in a timely manner.
Link to Consider the following when marketing, or accepting orders, via telephone: Consider the following when marketing, or accepting orders, via telephone:
- Marketing calls and text messages to cell phones made using an autodialer and/ or a prerecorded message are subject to signed, written consent requirements, with definitions of “autodialer” and “automated system” subject to court interpretation.
- New developments in state law raise new regulatory and class action risk.
- DNC requirements apply to outbound calls and texts. Exceptions for contacting former or existing customers or recent prospects vary among states.
- Companies should scrub outbound telephone numbers against the national DNC list or ensure that they fall under an exemption like an existing business relationship or obtaining consent.
- New state laws require telemarketers to identify themselves at the outset of outbound calls. Many laws also require telemarketers to register before making calls.
- Upsells on inbound or outbound calls are subject to disclosure and consumer protection requirements.
- Federal law requires the maintenance of DNC policies.
- Permissible calling and texting times also vary at the federal and state levels.
- State laws impose restrictions on the use of artificial intelligence (AI) without specific disclosures.
- Under the FTC’s Telemarketing Sales Rule (TSR), third parties (such as call centers, lead generators, fulfillment companies, payment processors, and others) that provide substantial assistance
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