United States: Here's My Number, So Text Me Maybe

In our increasingly cellphone-dependent world, most consumers are familiar with the feeling of relief that comes from receiving an appointment reminder for an otherwise forgotten appointment, a delay notification for a flight before one leaves for the airport, or an automated payment notification for a bill that might otherwise have gone unpaid. To the average consumer who has grown accustomed to such conveniences, it would seem like poor and outdated customer service for a business not to provide such notifications. Yet businesses that provide such notifications by text message often find themselves facing millions of dollars in liability—not from customers who have asked not to be contacted by phone—but instead from the very customers who provided their cellphone number as their preferred method of contact.

The statute imposing such liability, the Telephone Consumer Protection Act was passed in response to the "pervasive" use of telemarketing in the early 1990s. Based on the legislative finding that "many consumers are outraged over the proliferation of intrusive, nuisance calls," Congress imposed strict limitations on the conditions in which businesses can contact an individual by phone. Congress simultaneously imposed severe penalties on any business that violates these restrictions: Negligent violations of any TCPA restriction carry a statutory penalty of $500 per call, while damages for willful violations are trebled to a staggering $1,500 per call or message.

Like so many statutes with significant statutory penalties—and a corresponding potential to generate significant attorney fees—the TCPA has now been used to assert claims on behalf of a wide variety of plaintiffs beyond those the statute was originally designed to protect. Following the 2009 case of Satterfield v. Simon & Schuster, 569 F.3d 946, in which the 9th U.S. Circuit Court of Appeals concluded that text messages are the same as calls under the TCPA, the act in effect prohibits the sending of any text messages without the "prior express consent" of the recipient. On the basis of this "prior express consent" requirement, plaintiffs who voluntarily provided their phone numbers to businesses have subsequently filed suit against those businesses on the basis of receiving a single text message. Even when—as if often the case—that text message provides that the customer will only be contacted again if they choose to opt in to text message services, the sending business faces a claim for damages in the amount of $1,500 per text.

Fortunately, recent decisions demonstrate an increasing trend among federal courts not to find TCPA liability in cases where the plaintiff voluntarily provided their cellphone number to the defendant business. Heeding the instruction of the 9th Circuit that courts should approach the question of TCPA liability "with a measure of common sense," Chestboro v. Best Buy Stores, 697 F.3d 1230, 1234 (9th Cir. 2012), courts have increasingly concluded that text messages sent to voluntarily provided numbers are simply not the types of intrusive, nuisance calls that the TCPA was intended to deter.

One recent case out of the Central District of California aptly demonstrates the logic of this common sense approach. In Emanuel v. Los Angeles Lakers (2013), a fan at the Staples Center voluntarily sent a text message to a number provided on a display screen so that his message ("I love you Facey. Happy Date Night") would be displayed on the screen. The Lakers sent the fan a single text message back confirming receipt of his message. On the basis of this text message, the fan brought suit on behalf of all persons who received similar response texts from the Lakers, claiming that the sending of a text to the Lakers did not constitute consent to receive a response. The court granted the Lakers' motion to dismiss, reasoning that "by sending his original message, Plaintiff expressly consented to receiving a confirmatory text from the Lakers." The court went on to say that "to hold otherwise would contradict the overwhelming weight of social practice: that is, distributing one's number is an invitation to be called."

The court utilized similar reasoning to reach the same conclusion in the case of Shaya v. Sabre Inc.(C.D. Cal. 2014). There the plaintiff input her cellular telephone number into the "contact information" page of the Hawaiian Airlines webpage while booking airline tickets. Three weeks before her scheduled flight the plaintiff was sent a single text message on behalf of the airline asking if she would like to receive text message notifications about her flight status. Shaya never responded to the text and was never texted again by the airline, but subsequently sought relief on behalf of herself and a class under the TCPA. The court granted summary judgment to defendant on the ground that plaintiff had effectively consented to be contacted by phone at the number she provided. In so doing, the court relied on a rulemaking action by the FCC, which concluded that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instruction to the contrary." Since the plaintiff provided no such contrary instruction, common sense compelled the conclusion that plaintiff had in fact consented to be contacted.

This trend in the case law should be welcomed by both businesses and consumers. Appropriately used text messages can provide valuable services to consumers: Appointment reminders, flight status updates, and automatic payment notifications are just a few examples of text messages that consumers frequently seek to receive. Moreover, the TCPA contains a number of provisions that effectively prevent such messages from becoming burdensome to consumers, such as the requirement of a prominent opt-out provision. In light of these protections, treating the provision of a cellphone number as consent to receive text messages allows for convenient communication without diminishing the ability of consumers to limit or eliminate unwanted texts.

Originally published in the Daily Journal on April 21, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
20 Jan 2019, Conference, California, United States

Since 2009, recognized as a vital cornerstone for all constituents of the healthcare and biotechnology community, PMWC provides an exceptional forum for the exchange of information about the latest advances in technology (e.g. DNA sequencing technology), in clinical implementation (e.g. cancer and beyond), research, and in all aspects related to the regulatory and reimbursement sectors.

20 Jan 2019, Conference, California, United States

Fenwick partner ​Kevin Kabler will be speaking at the IO Intellectual Property session (January 21 at 2pm).

21 Jan 2019, Speaking Engagement, California, United States

Now entering its fifth year, the Pocket Gamer Connects events series has grown to become the biggest and most influential mobile games conference in the west as well as th​e biggest games event overall in the UK and Helsinki.

Similar Articles
Relevancy Powered by MondaqAI
Klein Moynihan Turco LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Klein Moynihan Turco LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions