TELEPHONE CONSUMER PROTECTION ACT (TCPA)
In order to state a claim for violation of the TCPA by virtue of unsolicited text messages, a Plaintiff must demonstrate that an unauthorized text message was actually sent to her phone, by way of a randomized autodialing system. The claimant must show that:
A call was made to a cellular or wireless phone,
By the use of any automatic dialing system or an artificial or prerecorded voice, and
Without prior express consent of the called party.
Express consent is consent that is clearly and unmistakably stated. Prior express written consent means an agreement, in writing, with the signature of the person called, that clearly authorized the seller to deliver advertisements or telemarketing messages to the person who was called. The term ‘signature’ can include an electronic or digital signature.
In the context of an unsolicited fax message, TCPA claims are somewhat different. In those cases, an established business relationship with the recipient is an absolute defense. An unsolicited advertisement by fax is exempt from all prohibitions when it is from a sender with an established business relationship with the recipient, and the sender obtained the fax number through voluntary communication of the number from a directory, advertisement, or internet site available to the public, on which the recipient voluntarily agreed to make its fax number available for public distribution.
If your business has encountered a TCPA issue, contact us for a free consult.