Sending Texts? Get Valid Consent

Yet another class action lawsuit has been filed based on unsolicited commercial text messages.  As described in an earlier post, under the Telephone Consumer Protection Act (TCPA), companies may only send commercial text messages with the prior express consent of the consumer to whom the message is sent.

In this case, the Plaintiff filed her suit against payday lender MyCashNow (currently Credit Payment Services, Inc.) “on behalf of all persons in the U.S. and its Territories who received one or more unauthorized text message advertisements from Credit Payment Services or MyCashNow.

The complaint further alleges that by using unsolicited texts in its advertising campaigns, MyCashNow has caused consumers actual harm, not only because consumers were subjected to the aggravation that necessarily accompanies wireless spam, but also because consumers frequently have to pay their cell phone service providers for receiving them.    The alleged texts read:  “DO YOU NEED UP TO $5000 TODAY? EASY QUICK AND ALL ONLINE AT: WWW.LEND5K.COM 24 MONTH REPAY, ALL CREDIT OK. REPLY STOP 2 END.”  Plaintiff seeks injunctive relief requiring MyCashNow to stop sending wireless spam, as well as statutory damages (up to $500 per violation), reasonable attorneys’ fees and costs.

To read plaintiff’s complaint, click here.

Although MyCashNow has yet to respond to this case, it may have sent the text under the false belief that it first obtained the valid consent of the consumer to do so.   As detailed in an earlier post, the express written consent requirement also applies to recorded voice messages.  The Federal Trade Commission, which enforces the TCPA, has established guidelines for obtaining valid consent to send a recorded message, which by extension, should apply to commercial texts.  Under FTC rules, a company can obtain valid consent to send recorded messages to a consumer via a website, as long as it does the following:

  • It must clearly and conspicuously disclose that it is asking for a consumer’s okay to deliver prerecorded telemarketing messages. The language must be placed in a manner calculated to attract the attention of a reasonable consumer.  At a minimum, it should be on the same page as the data submission form and visible by consumers without having to scroll, or take any additional action to clearly view the language.
  • The company must identify itself as the business that is requesting permission to deliver prerecorded telemarketing messages, and can not share that permission with unnamed third parties.
  • The consumer gets to choose the number to which prerecorded messages may be delivered.
  • The company cannot directly or indirectly require anyone to agree to prerecorded calls as a condition for purchasing or receiving any goods or services.
  • Any website used to gather consumer consents needs to comply with the requirements of the Electronic Signatures in Global and National Commerce Act (E-SIGN), and accurately record the time, date, and source IP address of website users, together with the information they provided during the course of their visit, to prove up the existence of valid consent.

Failure to follow these rules means that any consents collected will be invalid.



Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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