The Telephone Consumer Protection Act: Unwanted Emails, Text Messages, and Faxes

The Telephone Consumer Protection Act (TCPA) and the Federal Communications Commission’s (FCC) rules were created to address the telemarketing practices that threaten consumer privacy and public safety. This protection has been extended to unwanted emails, text messages, and faxes.

Unwanted Emails and Text Messages

The FCC rules ban many of the text messages that are sent to mobile phones using an autodialer. This ban still applies even if a consumer has not placed their mobile phone number on the national Do-Not-Call Registry. There are two exceptions to his ban:

• The consumer has given their consent to receive messages
• The message is sent for emergency purposes

Commercial emails and text messages can be sent to consumer’s mobile phones as long as the consumer has previously agreed to receive them. It is also required that the consent be in writing to receive commercial texts. If the text messages are non-commercial or informational then the consent only needs to be oral.

With regards to whether commercial emails can be sent to a consumer, the consent can be either oral or written. The sender of the email must provide the consumer with the name of the entity that sends the messages and the name of the entity is advertising products or services. All emails that the consumer has given authorization to receive must contain information on how to revoke authorization, or "opt out" of receiving future messages.

Faxes

For the most part unsolicited facsimile (fax) advertisements are prohibited by the TCPA and FCC rules. Unsolicited faxes are materials advertising the commercial availability or quality of any property, goods, or services transmitted to a person without that person’s prior express invitation or permission, given in writing or otherwise. Under the FCC rules:

• There is an exemption from sending unsolicited fax advertisements for established business relationships
• Senders of fax advertisements are required to provide a specified notice and contact information on their faxes, allowing recipients to “opt-out” of receiving future faxes

Senders of fax advertisements must have a recipient’s prior express permission to send advertisements to any fax machine. However, if a sender has an established business relationship with the recipient, the advertisement can be sent to a fax number if:

• The fax number was obtained directly from the recipient;
• The fax number was obtained from the recipients directory, advertisement, or site on the internet (provided that the materials do not indicate that it does not accept unsolicited advertisements at that fax number); or
• The sender takes reasonable steps to verify that the number was listed with the consent of the recipient (if the number was obtained from a directory or other source of information compiled by a third party)

It is also required that sender provide on permitted fax advertisements contact information that allows the recipient to “opt-out” of future faxes. The notice must:

• Be clear and on the first page of the advertisement;
• Inform the recipient that they may make a request that no future faxes be sent and that it is unlawful if the sender fails to comply within 30 days; and
• A telephone, fax number, and cost-free mechanism to opt-out of receiving faxes must also be included

In order to opt-out of receiving unwanted fax advertisements consumers must:

• Identify the fax number or number to which it relates; and
• Send the opt-out request to the telephone number, or fax number, website address, or email address identified on the fax advertisement

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the TCPA and the FDCPA and how telephone debt collectors should act. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 or visit our website at http://www.krohnandmoss.com/.