A federal lawsuit challenging the state of Texas’ recent expansion of telemarketing regulations to include text messages has ended with a stipulation of settlement that applies a more limited scope of the registration requirement for SMS marketing programs. This blog has previously covered this issue as businesses were vexed by the dilemma of whether or not registration as a telemarketer in Texas was required under a confusingly worded new state law known as SB 140.
On September 1, 2025, Texas Senate Bill 140 (“SB 140”) expanded the state’s telemarketing law to cover text messaging under Chapter 302 of the Texas Business & Commerce Code. Previously, these rules primarily applied to telephone calls, but SB 140 was designed to include unwanted or “spam” text messages. Critical to businesses that use text messaging for marketing purposes, SB 140’s broad language appears to expose such businesses to burdensome registration and bonding requirements, even if the businesses limit their marketing texts to consumers who have opted in voluntarily. This uncertainty prompted a same-day legal challenge in federal court, filed by Flux Footwear, Postscript, and the Ecommerce Innovation Alliance (EIA).
On September 1, 2025, Texas’s amended telemarketing law became effective. It significantly broadened the state's rules by explicitly adding text messages (SMS), multimedia messages (MMS) and other electronic communications into the definition of “telephone solicitation.” The law, amended through Senate Bill SB 140, does not change the consent requirement for telemarketing but in addition to expanding the registration requirements, it establishes harsher penalties for violations compared to the federal Telephone Consumer Protection Act (TCPA). Because the law contains a private right of action, we are expecting a sharp increase in consumer lawsuits in Texas.
The Federal Trade Commission (“FTC”) has amended the Telemarketing Sales Rule (“TSR”). The simplest change is the expansion of the TSR to explicitly cover all business-to-business (“B2B”) telemarketing and artificial intelligence-enabled calls, which takes effect on May 16, 2024. Oddly, the only B2B calls previously covered by the TSR were those selling office and cleaning supplies.
FTC likely to eliminate the exemption
The Federal Trade Commission (“FTC”) is considering a proposed amendment to the Telemarketing Sales Rule (“TSR”) that would broaden the rule’s scope by prohibiting material misrepresentations and false or misleading statements in business-to-business (“B2B”) transactions.
Sunshine State Takes a Strong Stance against Autodialed Calls and Texts
Advertising, Marketing & Promotions practice chair Andrew Lustigman, Intellectual Property/Privacy partner Mary Grieco, AMP partner Scott Shaffer, and associate Morgan Spina authored four Guidance Notes on direct marketing in California recently published in the prestigious OneTrust DataGuidance (subscription required). The first, entitled “California – Emarketing,” covers both the state and federal legislation, as well as regulatory guidance from the Federal Trade Commission, concerning emarketing. In the second, “California – Telemarketing,” the authors examine the numerous pieces of state and federal legislation governing telemarketing, including the “Automatic Dialing Law” and the “Unwanted Calls Law.” The third, entitled “California – SMS/MMS Marketing,” discusses various state and federal laws on SMS/MMS, including the Telephone Consumer Protection Act, and the consent requirements that advertisers must follow when using these services. In the fourth, “California – Postal Marketing,” the authors explore various state and federal laws on postal marketing, such as California’s “Mail Solicitation Law” and the federal “Deceptive Mail Act.”
We continue to monitor the effects of the COVID-19 pandemic on telemarketing regulations. The FCC has allowed health care providers to place emergency automated calls and text messages related to COVID-19, but three states have seen new telemarketing restrictions triggered by state-of-emergency declarations. Meanwhile, California is considering changes to its telemarketing statute unrelated to the pandemic. The following summarizes these recent developments:
With the federal government and most states under a state of emergency due to the COVID-19 pandemic, telemarketers should be aware of laws that restrict telemarketing calls during a state of emergency.
New York has just passed legislation that has the capacity to be one of the most onerous telemarketing compliance laws. The legislation may potentially impact telemarketers’ outbound calling and data sharing practices.
Payment methods, Verification, Do Not Call provisions among those modified
Magazine subscription program defeats Do Not Call lawsuit
Telemarketer’s Do Not Call Violations Cost Business $6 Million
Andrew Lustigman and Scott Shaffer Discuss TCPA Lawsuits and Implications on Telemarketers in new Inside Counsel article.
Sprint also agrees to preventative measures.
Andrew Lustigman will Speak on City Bar CLE Panel on Sweepstakes, Promotions and Marketing on May 16, 2014.
FCC Creates Exception To TCPA’s Prior Express Consent Requirement.
Companies that use lead generators must exercise due diligence when they buy lists of phone numbers.
The FTC and the Information Commissioner’s Office of the United Kingdom (UK) entered into a memorandum of understanding (MOU) intended to promote increased cooperation and communication between the two agencies to protect consumer privacy.
California court allows texting class action to proceed vs. search engine.
In Gragg v. Orange Cab Company, decided on February 7, 2014 in the Western District of Washington, a class-action defendant accused of sending mass texting messages without prior consent was granted partial summary judgment on all claims under the Telephone Consumer Protection Act (TCPA).
The National Advertising Division, a specialized dispute resolution forum administered by the Council of Better Business Bureaus, recently clarified the standard for determining whether statements are mere "puffery," rather than unsupported superiority messages.
On September 17, 2013, from 12:30-1:30pm Eastern time, Olshan will present the webinar Important Changes To The Telephone Consumer Protection Act (TCPA): What You and Your Client Need To Know.
We blogged about how the Sixth Circuit Court of Appeals opened the door for Telephone Consumer Protection Act (TCPA) class actions in Michigan by ruling that state prohibitions on class actions had no effect on federal lawsuits.
Andrew Lustigman will speak at the 35th BAA Annual Marketing Law Conference in Chicago, IL on November 18-20, 2013.
In United States vs. Mortgage Investors Corp. of Ohio, filed in the Middle District of Florida on June 25, 2013, a home loan refinancing company agreed to pay a $7.5 million civil penalty for allegedly violating Do Not Call provisions of the Telemarketing Sales Rule (TSR).
The FTC has proposed new amendments to the Telemarketing Sales Rule. Importantly, the proposed changes would bar non-traditional payment mechanisms such as remotely created checks. The proposed rules also clarify other provisions of the Rule.
As a reminder, last year the FCC revised its rules for auto-dialed calls to completely eliminate the established business relationship (EBR) exemption for calls to landline numbers. The new regulations go into effect on October 16, 2013.
In Standard Mutual Insurance v. Ted Lay Real Estate, decided on May 23, 2013, the Illinois Supreme Court ruled that the TCPA's $500-per-call damages provision is not punitive in nature. The significance of this ruling is that, at least in Illinois, TCPA damages can be insured by marketers.
On May 9, 2013, the FCC clarified the extent to which sellers can be held liable for robo-calls and texts sent by third-party marketers on their behalf.
Here is a look at four recent class-action lawsuits under the Telephone Consumer Protection Act (TCPA):
Effective November 12, 2012, sweeping new telemarketing legislation is now in effect in New York.