Heightened SMS Consent Requirements Take Effect October 16, 2013

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Only two months remain before the Federal Communications Commission’s updated consent requirements for marketing-related text messages take effect. Violations will give rise to liability for statutory damages of $500-$1,500 per message, depending on the extent to which the defendant willfully or knowingly violated the requirement. Under existing FCC rules, companies cannot use an “automatic telephone dialing system” to send non-emergency text messages without the recipient’s prior express consent. Courts have construed the term “automatic telephone dialing system” in such a broad manner that it includes most systems commonly used to send multiple text messages. Under a revision to the rules that takes effect on October 16, 2013, companies need “prior express written consent” (emphasis added) to use such equipment to send a text message that introduces an “advertisement” or constitutes “telemarketing.” The sweeping definitions of these terms encompass virtually all text messages that have any tie to marketing: “Advertisement” means