A promotional text can cost far more than the campaign that produced it. The Telephone Consumer Protection Act (TCPA) allows statutory damages for certain unlawful texts, and separate consent and do-not-call rules can apply to the same campaign. For California businesses, TCPA text marketing compliance starts with understanding how messages are sent, what permission recipients gave, and whether opt-out requests are respected. This article explains the potential penalties and practical steps for reducing risk.
When does the TCPA apply to marketing texts?
The TCPA restricts certain calls to cellular numbers made using an automatic telephone dialing system, commonly called an autodialer. Those restrictions also apply to text messages. The relevant federal statute is 47 U.S.C. § 227(b), with implementing rules in 47 C.F.R. § 64.1200.
Not every software-generated text uses an autodialer under the statute. In Facebook, Inc. v. Duguid, 592 U.S. 395 (2021), the Supreme Court held that the equipment must use a random or sequential number generator to store or produce telephone numbers. Sending automatically from a customer list does not, by itself, establish that requirement.
That distinction is important, but it is not a blanket exemption for marketing platforms. FCC do-not-call regulations extend to marketing texts and generally do not require proof that an autodialer was used. Whether recipients can pursue the separate private remedy under 47 U.S.C. § 227(c)(5) for texts is disputed, however, and depends on the governing jurisdiction. A manually sent promotional text can therefore create compliance concerns even when the autodialer restrictions do not apply.
Review both the platform’s technical capabilities and the campaign’s purpose. Calling a message an “update” does not make it nonmarketing if its content promotes a purchase. California Business and Professions Code § 17538.41 also separately restricts text message advertisements to mobile telephone or pager numbers, subject to statutory exceptions, including affirmative consent and certain existing relationships with an opt-out option. Analyze those requirements independently of the federal autodialer rules.
What do the per-text penalties actually mean?
Under 47 U.S.C. § 227(b)(3), a person may seek actual monetary loss or $500 for a violation, whichever is greater. A court may increase the award to as much as $1,500 if it finds a knowing or willful violation. Qualifying unlawful texts can each support a damages claim, so repeated messages can substantially increase exposure.
The higher amount is not automatic. Nor does every unwanted text establish a TCPA violation. Liability depends on the applicable rule, consent, sending technology, and other facts.
The TCPA also provides a private claim for certain do-not-call violations under 47 U.S.C. § 227(c)(5). That provision requires more than one qualifying telephone call within a 12-month period by or on behalf of the same entity in violation of the relevant regulations. Whether text messages qualify as “telephone calls” for this private remedy is unsettled and subject to disagreement among courts. The Ninth Circuit’s treatment of texts as calls under § 227(b) does not necessarily resolve the scope of § 227(c)(5), so California businesses should not assume that the two remedies cover identical conduct.
- Separate the autodialer analysis from the do-not-call analysis.
- Do not assume every complaint creates a $1,500 claim.
- Do not assume a low-cost campaign creates low legal exposure.
- Consider defense costs and potential class claims alongside statutory damages.
Build TCPA text marketing compliance around consent
For autodialed marketing texts to wireless numbers, FCC rules generally require prior express written consent. The written-consent requirement also generally applies to covered artificial-voice or prerecorded telemarketing calls to wireless numbers. Other covered, nonmarketing calls or texts generally require prior express consent rather than written consent, subject to applicable exceptions. A customer providing a number for delivery updates or account security does not automatically authorize promotional texts.
A compliant written agreement should clearly authorize the seller to send marketing messages using the covered technology to the specified number. It must include the required disclosures, including that consent is not a condition of purchasing goods or services. An electronic signature can qualify when legally valid.
Before launching a campaign, check these points:
- Disclosure: Does the signup language clearly explain marketing texts, rather than merely mention “communications”?
- Identity: Is the business receiving permission clearly identified?
- Evidence: Can you reproduce the disclosure, signature or affirmative action, telephone number, and signup date?
- Purpose: Does the campaign stay within the permission actually provided?
Buying a list is not the same as obtaining valid consent. A vendor’s statement that contacts are “opted in” should prompt a review of the underlying records. An existing customer relationship, standing alone, does not satisfy the written-consent requirement for covered autodialed marketing texts. It may affect separate do-not-call or California-law exceptions, so those requirements must be analyzed independently.
Respect opt-outs and do-not-call protections
Recipients can revoke consent through reasonable methods. Your process should recognize common responses such as “STOP,” but it should not depend exclusively on an exact keyword when the recipient otherwise clearly asks to stop.
Apply opt-out requests promptly. Under 47 C.F.R. § 64.1200(a)(10), covered reasonable consent-revocation requests must be honored within a reasonable time not exceeding 10 business days from receipt. Check any other applicable opt-out requirements as well. Synchronize suppression records across your marketing platform, customer database, and vendors so that an import does not reactivate a person who opted out.
For campaigns subject to federal telephone-solicitation rules, assess National Do Not Call Registry requirements, company-specific do-not-call procedures, and applicable exceptions. Under 47 C.F.R. § 64.1200(c)(1), covered telephone solicitations generally may not occur before 8 a.m. or after 9 p.m. in the recipient’s local time. Confirm whether the particular text campaign falls within that rule, including the provisions governing wireless numbers in § 64.1200(e), and separately check California and other applicable state requirements.
Numbers can also be reassigned. Permission from a previous subscriber may not authorize texts to the current subscriber. Review inactive contacts and use appropriate reassignment checks rather than treating old consent as permanent.
Add California privacy and vendor controls
California businesses should assess privacy obligations separately from TCPA consent. If the California Consumer Privacy Act applies to your business, collecting telephone numbers can trigger notice and other requirements under Cal. Civ. Code § 1798.100 et seq. A privacy notice does not itself supply TCPA marketing consent.
Vendor agreements should address consent records, suppression lists, subcontractors, complaint reporting, and access to campaign logs. Contractual risk allocation does not eliminate potential liability to recipients.
Keep an auditable record of each campaign’s audience, message content, consent source, and exclusions. If an individual raises a complaint, preserve the relevant evidence and investigate before sending more promotional messages. Itkin Law’s regulatory compliance services can help businesses evaluate these connected obligations.
Talk to a California business attorney
Itkin Law offers a free consultation for California businesses reviewing text campaigns and individuals with questions about unwanted marketing texts. Schedule a free consultation or call (424) 603-8888.
This article is attorney advertising and provides general information only. It is not legal advice and does not create an attorney–client relationship. The law changes, and this article reflects the law as of its publication date. Every situation is different — contact us to discuss how the law applies to your exact circumstances. See our full disclaimer.
