Readers may recall a recent piece in which we discussed a constitutional challenge to the implementation of Texas Senate Bill 140 ("SB 140"), which overhauled Texas' mini-Telephone Consumer Protection Act ("TCPA"). Below, we discuss in detail the resolution of this challenge and provide an update for companies that engage in consent-based telemarketing in Texas.
Texas Mini-TCPA Registration Requirements
When we wrote about SB 140's sweeping amendments to Texas' mini-TCPA, it was unsettled as to whether its burdensome registration and disclosure requirements applied to companies that engage in consent-based telemarketing. This issue was created as a result of SB 140's amendment to the definition of "telephone call" in Texas' mini-TCPA registration section. While a different section of Texas' mini-TCPA defines "telephone call" to explicitly exclude transmissions to consumers who have agreed to receive them, the definition of "telephone call" in Texas' mini-TCPA registration requirement provision does not include this express exemption. In an effort to obtain clarity, Ecommerce Innovation Alliance ("EIA"), an e-commerce advocacy group, and two other companies opposed SB 140's application to businesses that telemarket to consumers who provide prior, affirmative consent.
As part of a settlement, the Texas Office of Attorney General and its Secretary of State ("SOS") issued guidance confirming that text messages sent with prior consumer consent are not "telephone calls" for purposes of Texas' mini-TCPA registration provision. In other words, businesses that only send text messages to Texas consumers who provided prior, affirmative consent are not subject to Texas' mini-TCPA registration requirements. The SOS also agreed to add the following language to its website: "any business that sends text messages with prior consent of the consumer is not required to complete the Telephone Solicitation Registration Statement under Business and Commerce Code Chapter 302."
What Does This Mean For Your Company?
It should be noted that the above guidance applies equally to consent-based telemarketing calls. According to the terms of the settlement agreement, companies that already filed registration applications with the SOS may withdraw their applications if the SOS has not acted on their applications. Formal guidance on the withdrawal process is posted on the SOS website. Because SB 140 amended Texas' mini-TCPA to consider violations as a deceptive trade practice, companies are subject to civil penalties of $5,000 per violation. As a result of these recent developments, businesses that only send consent-based text messages to Texas consumers do not violate Texas' mini-TCPA by failing to comply with its registration requirements.
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