Hunton Retail Law Resource

Retailers, beware! The new wave in the fight against “robocalls” is coming, and it’s targeting telemarketing text messages. In the past six months, we have seen an uptick in activity at both the state and federal level to rein in telemarketing text messages, and companies using any kind of text messaging telemarketing will want to proceed with caution.

Florida, unsurprisingly, kicked things off with their “mini-TCPA,” which went into effect on July 1, 2021. The mini-TCPA amends Florida’s Telemarketing Act in several key ways, most notably that it allows 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. Consent is required 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, we have identified at least 42 lawsuits alleging its violation. Of those 42 lawsuits, all of which were filed as putative class actions, 38 related to the consumer’s receipt of text messages.

On July 13, 2021, thirteen days after Florida’s mini-TCPA became law, former governor Andrew Cuomo, signed into law a bill that amended New York’s General Business Law 399-z to include the term “electronic messaging text” into the currently existing definitions of “telemarketer,” “telemarketing,” and “telemarketing sales call.” Governor Cuomo explained that the amendment was necessary to “close[] this annoying loophole” and to protect New Yorkers from “unwanted texts attempting to sell [consumers] things they don’t want.” The amendments became effective on August 12, 2021. So far, we have not identified any lawsuits alleging violations of this statute, but we expect litigation is likely to pick up in the near future.

Then, on August 20, 2021, the House of Representatives Committee on Oversight and Reform sent a letter to the FCC asking the FCC to clarify what acts it intends to take to rein in “spam texts.” In its letter, the Committee expresses 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.

And most recently, on September 24, 2021, Senator Richard Blumenthal (CT) 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.”

We expect that this increased focus on text messages will continue, both at the state and federal level, and so we encourage retailers who communicate with consumers by text message to stay vigilant. And dust off your telemarketing policies and procedures – you’re going to need them.