One Text Without Consumer Consent is One Text Too Many!

When the first mobile telephone was invented in 1952, few could have imagined its evolution from a single function, largely impractical device to the smaller, multifunctional, multiuse and economically accessible mobile computing devices they are today.  Cellular telephones go everywhere with us and, if the new normal of masses of downturned, digitally engrossed, heads is an indicator, for some, the cell phone is everything!

As I’ve previously noted, today’s cellular telephones are uniquely personal devices. They permit others to reach us regardless of where we are, or what we are doing.   We use them to communicate with our loved ones; they help us coordinate meetings, locate restaurants and check our email.  The cell phone has also dramatically changed how we communicate with each other.  We know longer just speak to each other through our cell phones – we email and we text.  As any parent of a “tween” knows and as many have begun to acknowledge, “texting is fast becoming the most popular and cheapest form of communication in the world.”  Corporations now devote significant resources to text messaging services and solicitations; communities all over the world are organizing and over throwing oppressive regimes heavily relying on mobile phone technologies; and, large social and political campaigns now rely on texting.

In 1991 when cellular phones were but just a shadow of what they are today, Congress had the foresight that cellular technology would evolve and needed to be treated differently from a landline.  Congress first passed the Telephone Consumer Protection Act (TCPA) in 1991 in response to consumer concerns about the growing number of dinner time telemarketing calls to their homes and the increasing use of automated and prerecorded messages being received on landlines. Even when cellular telephones were in their infancy, Congress understood the personal nature of this technology, and its incongruence with commercial desire to have complete, un-abetted  access to consumers.  Under the TCPA, unless it is an emergency or is an exception provided for in the law, a consumer must expressly consent to receive an automated call on their cellular phone.  Text messages also qualify as ‘calls’, so as to protect consumers from receiving unwanted messages and incurring charges.  This is so, even when a company is sending a text message that a consumer might want.

However, recently companies that provide messaging platforms have asked the Federal Communications Commission to weigh in and decide whether confirmatory text messages are permissible under the TCPA.  If you have ever received a text message with a prompt in the message that says something like: “Reply STOP to no longer receive any messages” and then after replying ‘STOP’ have still received an additional message, this additional message is what is known as a confirmatory message.  The companies’ argument is that this additional confirmatory message helps to provide clarification to the consumer that their request has been received and that this should not then be a violation of the TCPA.

NACA has recently filed comments with the FCC arguing that these messages, and any message where a consumer does not expressly consent to receive a message, is a violation of the law.  Here’s how we see it and why we see it this way.  Even if helpful to consumers, there are many conveniences that consumers should not just be automatically opted into, particularly where text messaging and data fees might apply.   Because consumers highly value their privacy and their right to choose with whom they communicate, the law has evolved to protect consumers from automatically being opted into various ‘helpful’ programs and communications that companies are now offering.  Thus, the mere notion that because something is helpful and therefore should be imposed upon consumers is in direct contradiction with the highly valued principle of prior express consent that under pins the TCPA.  Notwithstanding the fact that millions of dollars are made by companies for these confirmatory text message sent to consumers, the mere fact that something is convenient, helpful, or even potentially desired by consumers should not override providing the consumer with an opportunity opt in or opt out.  Most important, companies can send these messages by always obtaining consent from a consumer.  Instead of just telling a consumer to reply stop, why not provide them with a choice: “reply ‘stop’ to receive no messages or ‘reply’ confirm to receive no messages with a confirmation. ” (In case you were wondering, that option is 82 characters)

Cell phones are indeed uniquely personal devices and, now given modern usage, they also provided highly personal and valued space for which consumers pay.  Frankly, there are many conveniences which I, as a consumer, choose to opt out of every single day.  Why?  Because I value this personal space and frankly, I prefer not to have to scroll through or delete 50 plus convenience / commercial messages to get to my personal, text, messages.  Additionally, because many consumers use limited text messaging plans, they do not want to sacrifice precious and important messages from friends and family.  Consumers pay fees to be able to receive and send texts and these ‘commercial’ texts are likely not what consumers want to spend their hard earned money on.

If you would like to submit a comment on this matter to the FCC, you may do so here.