Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk.

Telephone and text message marketing poses private litigation risks and regulatory hurdles that should be considered before any campaign. The Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and states enforce do-not-call (DNC) laws and impose multiple other requirements regarding calling manner, disclosures, consent, opt-out, calling hour limits, caller identification, and telemarketer registration. Calls and texts made to cell phones, using certain types of dialing technology (including autodialers) and prerecorded messages (so-called robocalls), require particular attention, as much of the enforcement and litigation in this area involve texting and robocalling.

Historically, private litigation and class action lawsuits and demands have focused on FCC rules under the Telephone Consumer Protection Act (TCPA) that require companies to have “prior express written consent” before using an autodialer to call or text a cell phone for marketing purposes. In 2021, the Supreme Court held that the TCPA’s definition of “autodialer” is narrower than previously interpreted. However, lawsuits alleging DNC violations under the TCPA continue.

In addition, various states have adopted autodialer definitions under their own laws, which appear to be broader than the TCPA’s definition. For example, Maryland’s Stop the Spam Calls Act took effect on January 1, 2024 and prohibits call and text solicitations made with an “automated system” without the prior written consent of the called party. The Florida Telephone Solicitations Act (FTSA), which went into effect in July 2021, remains heavily litigated.

Additionally, marketers that have obtained consent might be liable for calling a number that was reassigned to a new subscriber who didn’t consent. New applications that integrate group messaging and texting services might also be subject to the FCC’s consent requirements.

In December 2023, the FTC restricted forms of lead generation involving texts and calls to consumers by requiring one-to-one consent for “robotexts” and “robocalls.” The agency continues to strengthen consumers’ ability to revoke consent to receive such calls and require marketers to honor such requests in a timely manner.

Consider the following when marketing, or accepting orders, via telephone:

• Marketing calls and text messages to cell phones made using an autodialer and/or prerecorded message are subject to signed, written consent requirements, with definitions of “autodialer” and “automated system” subject to court interpretation
• New developments in state law raise new regulatory and class action risk
• DNC requirements apply to outbound calls and texts. Exceptions for contacting former or existing customers or recent prospects vary among states
• New state laws require telemarketers to identify themselves at the outset of outbound calls. Many laws also require telemarketers to register before making calls
• Upsells on inbound or outbound calls are subject to disclosure and consumer protection requirements
• Federal law requires the maintenance of DNC policies
• Permissible calling and texting times also vary at the federal and state levels
• Under the FTC’s Telemarketing Sales Rule (TSR), third parties (such as call centers, lead generators, fulfillment companies, payment processors, and others) that provide substantial assistance to a seller that violates the TSR could be held liable for the seller’s actions.