Authored Articles & Publications Feb 15, 2019

Best in Law: Text with Caution

BB&K Attorneys Damian Moos and Anthony Chavez Warn Why Texting Employees and Customers Could Cost You

By Damian Moos and Anthony Chavez

As smartphones become more ubiquitous, it’s increasingly common for businesses to communicate with employees or customers via text messages. However, using such messages as a means to communicate may expose the business to substantial penalties under federal law.

Even telephone calls a business makes to a mobile device, if made from a smartphone, can violate federal law — with devastating consequences.

The Telephone Consumer Protection Act is a federal statute that regulates the use of Automated Telephone Dialing Systems. In the early 1990s, when Congress passed the TCPA, it was designed to regulate telemarketing calls made with the use of computer-based auto-dialers that would dial numbers at random until someone picked up.

Congress also expressed a need to protect cellular customers from having to pay for unsolicited incoming phone calls from telemarketers. (Cellular telephone users typically paid by the minute when the TCPA was passed.) Under the TCPA, it’s unlawful to make a call to a cellular phone number using an ATDS unless the caller has the recipient’s prior express consent.

Fast forward to today, and the TCPA has turned into a bonanza for plaintiffs’ attorneys. Since Congress enacted the TCPA, the Federal Communications Commission and courts have interpreted two provisions of the TCPA in ways that are problematic to businesses that operate in the age of the smartphone.

First, the FCC and courts have determined that sending a text message constitutes “making a call” and, therefore, falls within the scope of the TCPA. Second, a court determined a device that has the ability to store numbers in a list, and dial them from the list, meets the definition of an ATDS. Every smartphone has the ability to store numbers in a list and dial them from the list. Thus, because a smartphone counts as an ATDS, it is unlawful to use a smartphone to contact employees or customers on their mobile phone unless the caller has obtained the recipient’s prior express consent.

The penalties for making a call or sending a text that violates the TCPA are $500 for any violation and $1,500 if the violation is willful. Significantly, each text message sent or phone call made constitutes a separate violation, so the penalties can be significant if the volume of text messages or calls is substantial.

Further, the TCPA is a strict liability statute — even an innocent text to confirm an employee’s start time or a customer’s appointment would constitute a violation. There are no exceptions. Accordingly, businesses accused of violating the TCPA have faced millions — or 10s of millions — of dollars in civil lawsuits.

For businesses that use text messaging to communicate with employees or customers, or make phone calls to employees or customers using a device that meets the definition of an ATDS, it is essential to obtain prior express consent from employees and customers. Obtaining proper consent can be a relatively simple process that helps prevent against devastating liability.

This article first appeared in The Press-Enterprise and other Southern California Newspaper Group publications online on Feb. 15, 2019. Republished with permission.

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