Businesses banking on recent federal court decisions to expand their SMS marketing campaigns may be walking into a legal minefield at the state level.
While the Stendingr decision and certain district court rulings may significantly reduce federal TCPA do-not-call exposure for manually sent marketing texts, many states expressly regulate text messages even when sent manually.
Companies considering manual SMS campaigns in reliance on Stendingr and similar decisions should recognise that so-called mini-TCPAs may still pose a serious risk.
This applies even in jurisdictions where courts have held that texts do not equal calls under the federal Telephone Consumer Protection Act.
Wisconsin is among the most notable states to watch, given that its telemarketing statute expressly defines telephone solicitation to include text messages encouraging a purchase.
The statute states that “‘Telephone solicitation’ means the unsolicited initiation of a telephone conversation or text message for the purpose of encouraging the recipient to purchase property, goods, or services,” under Wis. Stat. § 100.52(1)(i).
Wisconsin prohibits telephone solicitations to any number listed on the state do-not-call registry at the time the solicitation is made, under Wis. Stat. § 100.52(4).
That makes Wisconsin, located in the Seventh Circuit, particularly significant following Stendingr, since the federal ruling does not remove the state-level prohibition on texting numbers on Wisconsin’s do-not-call list.
Indiana, also in the Seventh Circuit, takes an equally broad approach, with its definition of “telephone sales call” expressly including text, graphic, image, photograph, and multimedia messages sent via SMS, MMS, OTT messaging or voice-calling service, or similar technology, under Ind. Code § 24-4.7-2-9(b)(3).
Indiana prohibits making a telephone sales call to any number appearing in the most current quarterly listing published by the division, meaning text messages to those numbers are prohibited unless an exemption applies.
Florida presents a different set of complications, with district courts there remaining divided on whether a text message qualifies as a call under the TCPA.
However, the Florida Telephone Solicitation Act, Fla. Stat. § 501.059, expressly regulates text messages by defining a “telephonic sales call” to include text messages, voicemail transmissions, and other electronic communications sent to a consumer.
The statute generally prohibits unsolicited telephonic sales calls made using an automated system for the selection or dialing of telephone numbers without the recipient’s prior express written consent, subject to statutory exceptions.
The Florida Legislature amended the FTSA in 2023 to narrow certain provisions, including the dialer definition, but Florida continues to be one of the most active states for SMS and telemarketing litigation.
Even if additional district courts follow the Seventh Circuit’s reasoning, plaintiffs’ attorneys are likely to increasingly rely on state telemarketing statutes and consumer protection laws to challenge unwanted marketing texts.
Companies should resist the temptation to view Stendingr as a blanket authorisation to expand SMS marketing and should evaluate campaigns under both federal law and each applicable state’s telemarketing statutes.