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Washington Journal of Law, Technology & Arts

Abstract

Given the exponential growth in mobile phone usage, more businesses are adopting mobile communication strategies to engage with existing and potential customers. With 97% of all mobile marketing text messages being opened by their intended recipients, mobile text message marketing is both effective and lucrative. However, businesses must ensure that such messages comply with the Telephone Consumer Protection Act (TCPA), which generally prohibits sending unsolicited commercial text messages. Indeed, TCPA litigation has become the recent darling of class action lawyers due to uncapped statutory damages and is sure to increase with the heightened consent regulations promulgated by the Federal Communications Commission (FCC), effective October 16, 2013. However, businesses cannot escape liability simply by obtaining prior express consent, as more businesses are being forced into multi-million dollar settlements for exceeding the scope of consent granted by their mobile customers. This Article examines recent trends in how the FCC and the courts are delineating the contours of consent for mobile text messaging under the TCPA and provides ways businesses can engage with mobile customers without running afoul of the TCPA.

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