Legal Considerations Regarding Text Messaging and Spam

The TCPA restrictions on using an automatic telephone dialing system to call a cell phone could apply to the sending of text messages as well as regular telephone calls. However, several appeals court cases have recently left the TCPA’s application unclear. In addition, researchers that send text messages to cell phones in compliance with the TCPA (either manually or with expressed prior consent) could find their messages subject to the CAN-SPAM Act (16 CFR Part 316), which regulates commercial e-mail (spam).

Even though legitimate survey and opinion research is not defined by the TCPA as being “commercial” in nature, researchers are encouraged to always include opt-out notices and capability in text messages, as would be required under the CAN-SPAM Act. There also are numerous state laws regulating bulk e-mail and spam, and unsolicited telephone calling, of which researchers should be aware. Researchers should consider the implications of those laws that may apply to any cell phone survey they may be planning to conduct in particular states.

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