Federal Ruling Changes TCPA Landscape, State SMS Laws Still Apply
A recent ruling by the U.S. Court of Appeals for the Seventh Circuit, along with several district court decisions, may reduce federal Telephone Consumer Protection Act (TCPA) Do Not Call (DNC) claims for manually sent marketing text messages. However, businesses using manual SMS campaigns should be aware that many states have their own telemarketing laws that clearly regulate text messages.
For companies sending marketing texts across multiple states, those state laws may still apply even where courts have ruled that text messages are not considered telephone calls under the TCPA’s Do Not Call rules.
Wisconsin
Wisconsin law still generally prohibits covered marketing text messages sent to Wisconsin residential numbers listed on the National Do Not Call Registry, unless an exemption applies. It defines a telephone solicitation as an unsolicited phone call or text message that encourages someone to buy property, goods, or services.
This creates a difference between federal and state law. While the recent Seventh Circuit ruling found that a marketing text message is not a “telephone call” under the federal TCPA’s Do Not Call provision, Wisconsin law still prohibits marketing text messages sent to numbers on the state’s Do Not Call list unless an exemption applies.
Indiana
Indiana also includes text messages in its definition of a telephone sales call. The law covers text, graphic, image, photo, and multimedia messages sent through SMS, MMS, over-the-top (OTT) messaging services, voice-calling services, or similar technology.
Indiana prohibits telephone sales calls to phone numbers listed on the state’s current Do Not Call registry. Like Wisconsin, Indiana is part of the Seventh Circuit. Even though the federal ruling limits certain TCPA Do Not Call claims, Indiana law continues to prohibit marketing text messages sent to numbers on the state’s Do Not Call list unless an exemption applies.
Florida
Florida courts have not reached a single conclusion on whether a text message qualifies as a “call” under the TCPA.
However, the Florida Telephone Solicitation Act (FTSA) clearly regulates text messages. The law defines a telephonic sales call to include text messages, voicemail messages, and other electronic communications sent to consumers.
The FTSA generally prohibits unsolicited telephonic sales calls made using an automated system to select or dial telephone numbers, or by using a recorded message, unless the recipient has given prior express written consent or a statutory exception applies.
In 2023, the Florida Legislature amended the FTSA to narrow certain provisions, including the definition of an automated dialing system. Even after those changes, Florida remains one of the most active states for SMS and telemarketing lawsuits.
Businesses using automated text messaging platforms should ensure that campaigns subject to the TCPA’s automatic telephone dialing system (ATDS) rules also comply with the FTSA.
State Laws Still Matter
Even if more courts follow the Seventh Circuit’s decision, state telemarketing laws and consumer protection laws may still be used to challenge unwanted marketing text messages.
Businesses sending SMS marketing campaigns should review both federal requirements and the telemarketing laws in every state where they contact consumers.
