SUED FOR WHAT YOU DON’T SAY: New Text Message Content TCPA Theory Gaining Steam–And its Scary Stuff

So earlier in the week I covered a couple of rare but dangerous theories that the Plaintiffs bar is currently pursuing.

Arguably the scariest “alternative” TCPA theory of all, however, are the “content” based theories that look at whether a caller is properly disclosing their identity in communications with consumers.

These requirements are scary because many times a consumer is fully aware who is contacting them–especially during interactive text campaigns–which makes constantly reminding them of the sender of the message silly and annoying. And it really disrupts the flow of human engagement style texting.

Nonetheless, the Plaintiff’s bar has been hammering the theory that each and every text is a separate call that requires full disclosure of the sender of the text. And they appear to have drawn their first blood out in Utah earlier this month.

Setting the stage here, there are two provisions of the CFR that require disclosure of the identity of a caller–64.1200(b)–pertaining to the content of “artificial or prerecorded voice telephone messages”–and 64.1200(d)(4)–pertaining the “identification of sellers and telemarketers” in all phone calls.

The requirements of 64.1200(b) likely do not apply to text messages since they are focused on artificial and prerecorded voice calls. But even if they did, case law is clear–and correct–that this provision was promulgated under 227(d) of the TCPA, which lacks a private right of action.

Case law is much less clear with respect to 64.1200(d)(4). Although that provision also governs the content of calls–which plainly falls within the gambit of 227(d)–the fact that the disclosure requirements of that section are designed to assure a called party can swiftly opt out of future calls has lead some courts to conclude that the provision was promulgated under 227(c), which does contain a right of action.

Here’s what the provision actually says: A person or entity making a call for telemarketing purposes must provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted. 

Now unlike 64.1200(b), there is no requirement as to when and how the caller must identify itself. It just needs to do so. And notice that unlike 64.1200(b), this provision does not just apply to prerecorded or artificial voice calling. So texts may be in play–if there is a cause of action.

Well, in Robison v. 7PN, LLC, Case No. 2:21-cv-00308-TC, 2021 U.S. Dist. LEXIS 211963 (D. Ut. November 1, 2021) the court found a cause of action does exist for a 64.1200(d)(4) “content of call” suit. In the Court’s view depriving a called party of a right of action here would encourage anonymous marketing calls, and allow potential wrong doers to cover their tracks by failing to disclose their identities.

Perhaps more importantly, the Court also found that the provision applies to text messages. That means individuals who are sending texts must clearly disclose who is texting in connection with each “call.”

While case law is crystal clear that a text can be a call for TCPA purposes, it is less clear whether each individual text qualifies as its own call–requiring separate disclosure of the caller–or whether a text string might qualify as the “call” for purposes of assessing when and how a texter must identify itself.

Since a consumer is very aware that texts continuing to come from the same short or long code phone number are certainly coming from the same entity, a repeated disclosure requirement seems cumbersome and unnecessary. Plus it clearly makes engagement unpleasant.

Nonetheless, in many contexts each individual text constitutes its own call for TCPA purposes. And if that line of case law is brought to bear on content-specific claims, it might spell trouble for callers who rely on text engagement with consumers. (And since texts are now the safest channel to defeat ATDS claims post Facebook, a lot of folks have been moving to text engagement.)

That said, it seems clear to me that a called party would lack standing to sue where they, in fact, knew who was sending the text. The entire purpose of the provision is to enable consumers to effectively opt out and to the extent the consumer knows who is texting they are not being prevented from opting out based upon the failure of the texter to identify itself over and over and over again (and an automatic stop notification would also likely defeat standing in this context as well.)

In the end Robison reflects a single data point and is not necessarily reflective in a trend in the case law. But this theory is critical for callers and texters to keep in mind–especially in the marketing context. Keep in mind these provisions apply REGARDLESS of whether or not consent is obtained. So this is going to be a risk for any marketing campaign anywhere in the nation–and it applies to both text messages and voice calls.

Another fun and esoteric theory that will get some discussion at the Summit, but that you are very unlikely to hear about anywhere else.



  1. The theory that each and every text is a separate call that requires full disclosure of the sender of the text will only lead to a viable claim on each text if each and every text is a “telephone solicitation”. If it’s not, no violation and no triggering of the PRA. So, since a normal flow of texts initiated by a consumer responding to an initial solicitation, will most likely be informational, i.e. responsive to their questions, or other follow up, there would be nothing to worry about and no need to continuously provide identifying info.

    1. Also, forgot to add, once the consumer expresses interest or asks questions to inquire, there would be a inquiry based 3 month Established Business Relationship that would exempt further texts from liability anyway. So, really no need for identifying info on each text in an actual exchange of texts.

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