This topic comes out of the “strange case” file at our law firm: In an effort to drum up new work, a contractor sent two text messages, one immediately after another, to a prior customer. The customer then demanded money because of said text messages.
A Tale of Two Text Messages
The first message contained an advertisement and asked whether the homeowner wanted additional work from the contractor.
The second one stated that if the customer did not want to receive further texts, then they should reply “STOP.”
But what the contractor did not know was that the homeowner’s phone number was registered with the National Do Not Call Registry. As a result, the client demanded thousands of dollars from the contractor.
Where Did the Contractor Go Wrong?
The Telephone Consumer Protection Act is a federal law prohibiting unsolicited telephone solicitations. “Telephone solicitations” means a phone call or message for the purpose of encouraging the purchase of goods or services.
But it's not a telephone solicitation if someone has given a prior invitation or permission to any person with whom the caller has an established business relationship.
An “established business relationship” includes a prior or existing two-way communication between a contractor and homeowner based on the homeowner’s purchase with the contractor within 18 months preceding the date of the communication. A contractor can be fined up to $10,000 for violating these laws.
In addition to the federal law, states also have consumer protections regarding this topic. State laws may be more restrictive than the federal law.
The problem that our client faced was that, while he had an established business relationship with the customer (his company had previously performed work for the homeowner), the contractor completed the project about 24 months before sending these text messages.
As a result he did, in fact, violate the federal and state law. While we helped bring this dispute to a satisfactory resolution, it was an avoidable loss for the contractor, whose sole desire was to get more work and income.
This should be viewed as a cautionary tale for any contractor contemplating advertising using such methods. Contractors should seek advice from their attorneys prior to performing marketing campaigns using text messages.