Identifying the Types of Text Messages That Constitute TCPA Violations

Text messaging is one of the fastest ways businesses reach consumers—but it is also one of the most common sources of Telephone Consumer Protection Act (TCPA) violations. The TCPA (47 U.S.C. § 227) and related FCC regulations restrict certain marketing texts and require specific forms of consent, particularly when businesses use automated technology.

A frequent TCPA violation involves telemarketing/advertising texts (discounts, sales, offers, new products, lead generation, etc.) sent without the recipient’s prior express written consent (PEWC), when required.

Examples that commonly trigger claims:

• “Limited-time offer! Click for 20% off.”

• “You’ve been pre-approved—apply now.”

• “Get a free quote today” lead-gen texts sent after a consumer never opted in (or opted in ambiguously)

Key point: Marketing texts often require written consent that is clear, conspicuous, and specifically authorizes the sender to deliver marketing messages using automated technology (where applicable). Consent must also not be coerced as a condition of purchasing goods/services in many contexts.

The TCPA restricts texts made using an automatic telephone dialing system (ATDS) or other regulated automated dialing technology.

Although the ATDS definition has evolved (including the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid (2021)), automated campaigns can still create TCPA violation risk depending on how the platform selects and dials/texts numbers, and how consent was obtained and documented.

Common risk scenarios:

• Bulk texting platforms used for campaigns without valid consent records
• Automated systems that text numbers pulled from lead lists, web scrapes, or third-party brokers
• “Drip” campaigns that continue automatically after an initial inquiry

Even if a consumer initially consented, recipients generally have the right to revoke consent. Continuing to text after an opt-out request is a common basis for TCPA violations.

Potential violations include:

• Ignoring “STOP,” “UNSUBSCRIBE,” “CANCEL,” or similar opt-out keywords
• Requiring the consumer to call or take extra steps to stop texts
• Delaying opt-out implementation and sending additional messages afterward

Best practice: Treat opt-out requests broadly and promptly, and document suppression.

Marketing programs typically must provide a clear, easy way to stop future messages. While the TCPA’s opt-out requirements are often discussed in the context of calls, text-message marketing compliance commonly expects a straightforward opt-out pathway (e.g., “Reply STOP to cancel”).

Risk examples:

• Promotional texts with no opt-out instructions
• Opt-out language that is confusing, hidden, or inconsistent with the campaign

If a text is telemarketing, sending it to a number on the National Do Not Call Registry can create additional risk—particularly if the sender cannot prove an exception (such as an established business relationship, where applicable) or valid consent.

Important: DNC rules and TCPA rules can overlap. A text campaign can implicate both.

A business may have consent from one person, but if the phone number is later reassigned to someone else, continued texts to the new subscriber can lead to claims—because the new person did not consent.

Common examples:

• A company keeps texting an old customer’s number after it’s reassigned
• Collection/servicing texts continue to a number after a consumer changes phone numbers

There are tools and databases designed to reduce reassigned-number risk, but mistakes still happen.

Not all texts are purely promotional. Many are informational (appointment reminders, delivery alerts, fraud warnings). However, a message that seems “informational” can become marketing if it includes promotional content.

Examples:

• “Your appointment is tomorrow at 2 PM. While you’re here, ask about our financing specials!”
• “Your order shipped. Use code SAVE10 on your next purchase.”

When informational texts include advertising/telemarketing content, the higher consent standard may apply, and the sender may face increased TCPA exposure.

Consent is not always unlimited. TCPA violations can arise when companies:

• Text about a product the consumer didn’t agree to hear about
• Text from affiliated brands not disclosed at opt-in
• Send messages at a frequency that contradicts what was promised (“Msg frequency varies” issues can still arise if the campaign becomes excessive or misleading)

Another common litigation area involves online lead forms where consent language is:

• buried
• pre-checked
• unclear about automated marketing texts
• referencing multiple sellers without meaningful disclosure

If the consumer did not knowingly agree to receive marketing texts from a particular sender, the sender may have trouble proving valid consent.

TCPA damages are often sought on a per-text basis:

• $500 per violation (statutory damages)
• Up to $1,500 per violation if the violation is found “willful” or “knowing”

Because texts can be sent at scale, TCPA claims are frequently brought as class actions.

Businesses that text consumers often reduce risk by:

• Obtaining and retaining clear consent records (what the consumer saw, agreed to, and when)
• Separating informational vs. marketing campaigns
• Honoring opt-outs immediately and universally
• Auditing third-party lead sources and consent language
• Monitoring reassigned-number risk and maintaining suppression lists

This content is provided for general informational purposes only and does not constitute legal advice or form an attorney-client relationship. TCPA compliance is fact-specific and depends on the content of the messages, the technology used, how consent was obtained, and evolving federal and state law.