The Rewards and Risks of Mobile Messaging

Mobile messaging is a necessity for any business. Customers and consumers prefer text messages and read them more than other forms of messages. 

However, mobile messaging can present significant risks and liabilities. Compliance with federal and state legal requirements for mobile messaging, including the Telephone Consumer Protection Act (TCPA) and state marketing laws, is essential before undertaking any messaging campaign.

TCPA damages are statutory—ranging from $500 to $1,500 per unauthorized message—a number that can grow large when violations are aggregated into a potential class action lawsuit. State laws add an additional layer of complexity and compliance risk. 

Managing the Risk: Obtain Prior Express Consent for Messaging

Always obtain “prior express consent” before undertaking a messaging campaign. The type of “prior express consent” depends on several factors: 

• The telephone line being contacted (Wireless vs. Wireline)
• The method of delivering a message (Automated Systems vs. Manual)
• The purpose of the communication (Marketing vs. Informational)
• The sender's identity (e.g. health care providers, package delivery companies, financial institutions) and frequency of contact
• The called party’s location and specific state-level exceptions

Advertising or marketing communications require “prior express written consent,” while other types of communications require “prior express consent.” 

Managing the Risk: Allow Opt-Outs Using “Any Reasonable Means" and Honor Opt-Outs Within a Reasonable Time

The TCPA rules allow consumers to revoke their consent using “any reasonable means.” Businesses must recognize and honor various signals that show a consumer has revoked their consent to be contacted. For example, a consumer using “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” in a reply text message will constitute revocation.

An effective compliance strategy includes maintaining and updating a do-not-call (or contact) list and requiring vendors and third-party providers to follow applicable law.

Want to Learn More?

Contact Jack Pringle (jack.pringle@nelsonmullins.com) or Michael Nemcik (michael.nemcik@nelsonmullins.com).