While the FCC Report, Order and Further Notice of Proposed Rulemaking (Mar. 2023) remains pending, including, but not limited to, whether express written consent for a telephone call or text message may be to more than one entity, and whether such consent must be provided directly to a product/service provider, a federal court in Wisconsin has weighed-in on another pending issue.
Whether the Telephone Consumer Protection Act Do-Not-Call restrictions apply to commercial text messages just as they do to voice calls.
In Reimer v. Kohl’s, Inc. the court held that it does and chose not to wait for the FCC to rule on extending the TCPA’s DNC provisions.
In Reimer, Kohl’s sought to dismiss a lawsuit alleging that it disregarded numerous do-not-call requests, in part, arguing that the FCC’s NPRM seeks to extend TCPA Do-Not-Call provisions to text messages and, thus, applicable legal regulations necessarily do not presently extend that far.
The Reimer court concluded on its own that promotional text messages are currently covered by TCPA’s DNC provisions. It opined that the FCC’s NPRM is intended to “clarify”: existing legal regulations and that the FCC merely seeks comment on whether it should codify the application of the TCPA’s DNC rules to promotional text messages.
Failing to adhere to applicable telemarketing Do-Not-Call compliance protocols is dangerous business.
Richard B. Newman is an FTC attorney at Hinch Newman LLP.
Informational purposes only. Not legal advice. May be considered attorney advertising.