DUAL PURPOSE?: “May I communicate with you via text?” SMS From Car Dealership May Constitute TCPA Marketing Court Holds

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A court just held a message asking a consumer if they would “May I communicate with you via text” may constitute a solicitation under the TCPA where the context of the message suggests the intent of the message was to sell the consumer a car– and that’s probably the right result.

The line between marketing and informational messaging can sometimes be difficult to determine, but dual purpose calls have long been considered marketing under the TCPA’s restrictions. But what ultimately matters is the purpose of the message– not its content.

In Shafer v. Toyota of Broadman, 2026 WL 2819768 (N.D. Oh. Sept. 21, 2026) a car dealership sent two text messages to a consumer after he had replied stop.

The first message in the chain asked whether the Plaintiff wanted to upgrade to a new car. This was plainly marketing and the court had little trouble determining as much.

That message wasn’t at issue, however. What was at issue were the two messages the dealership sent after the stop. Neither overtly tried to sell him anything:

  1. “May I communicate with you via text?”; and
  2. Are you available “for a quick phone call regarding [his] 2018 Camry.”

The car dealership argued these messages were not marketing– and reading them in isolation they aren’t. But in context–i.e. messages sent by a car dealership after previously asking the consumer if they would like to upgrade to a new car– the court determined the messages might serve a “dual purpose” of luring the consumer in to a new car purchase by trying to discuss the purchase of the consumer’s current vehicle.

As such the dealership’s motion to dismiss the case is denied. (Notably the dealership did not raise the “SMS aren’t calls” argument for some reason– so they still may end up winning the case outright.)

This is an important case for folks to keep in mind when putting together outbound campaigns. It really shows how much context and INTENT matter– the words of the message are much less important than the purpose for which the message is sent.

These are very grey areas but Troutman Amin, LLP can help you navigate.

Also be sure to check out Deserve to Win Ep. 51 with GenAI CEO Tom Ryan– out now!

Chat soon.

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Published by Eric "Czar" Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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