Are you a wedding or event photographer covering a lot of different occasions who always has a book for guests to sign with their name and number if they might be interested in your services? Do you keep a master list of these phone numbers and use a texting app to automatically message them once a month with a marketing message? Unfortunately, you could be proceeding along and never have a problem with this until one day when you receive a letter in the mail. It’s a notification of a class action lawsuit against you for sending automated marketing text messages, which is apparently a violation of the Telecommunications Consumer Protection Act, or TCPA, and each text message can carry damages of up to $500. You run to your lawyer. 

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Your lawyer tells you that the TCPA prohibits using an automated texting service to send unsolicited marketing or advertising text messages to a consumer unless you have “prior express written consent.” You ask what this means—after all, your guestbook says clearly at the top of the page that if a guest gives their phone number, they will receive text messages about your business. Your lawyer grimaces and says that while your guestbook gives notice of potential text messages, it doesn’t acquire consent. 

In fact, the TCPA is very specific about what constitutes “prior express written consent.” In order to lawfully send marketing or advertising text messages to a customer, you must have a signed agreement from them that contains the phone number to be called and states specifically that they may receive text messages from you. 

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Now, there are a number of ways to acquire consent to text that will satisfy the TCPA and won’t involve asking every guest to sign a paper copy of a bulky contract. The easiest is to have guests input their names and numbers via an app on a touchscreen. You should have a simple agreement that is displayed clearly on the screen, and that states in large print that customers may receive advertising text messages, and customers should have to touch a large button that says “I AGREE,” which is an acceptable form of signature under the E-SIGN Act. Every time a customer inputs their number and hits “I AGREE,” the app should create and save a separate copy of the agreement containing their number. You promise your lawyer that you’ll ditch your dusty old guestbook for a new iPad with an e-signature app. 

There are a couple of other nuances of the TCPA that are worth understanding. Let’s say you have a portrait station at a wedding; guests pose in front of a backdrop, give you their phone number, and you immediately text them the picture you just took, along with a brief advertisement for your business. The guest gives you their number but doesn’t sign or agree to a contract. Can you send them a text? The answer is yes, because the text will not be unsolicited. The guest gave you their number for the express purpose of receiving a copy of the photo you just took; your text is user-generated and thus perfectly legal. 

Let’s expand on that scenario a little. Let’s say you have a portrait station at a wedding, but this time, you charge $5 per portrait. You make guests sign a contract before they can receive their portrait pictures via text, and after you send the initial portrait pics, you send some automated advertising texts once a week. Are you allowed to send advertising texts? The agreement says yes, but unfortunately you’ve hit one of the snags of the TCPA: Express written consent to receive text messages cannot be a condition of purchasing a service. Here, guests don’t get their portraits, for which they paid $5, until they agree to allow you to send them marketing texts. You acquired their consent to receive marketing texts by holding their portrait picture hostage; in other words, consent to receive advertising texts is a condition to receiving your service. If the portrait pics were free, it wouldn’t be a TCPA violation; agreeing to your contract isn’t a condition of purchasing a service, merely receiving a free service. If you only send the portrait pics but no subsequent advertising texts, then you haven’t violated the TCPA, because you sent that text at the prompting of the customer.

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Remember, when you use your services as a gateway to free access to your customer’s phone, you run afoul of the TCPA.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, Arce Stark & Haskell LLP, at ashlawllp.com.

This article is for informational purposes only. Contact a lawyer for legal advice.