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In order to state a claim for violation of the TCPA by virtue of unsolicited text messages, a Plaintiff must demonstrate that an unauthorized text message was actually sent to her phone, by way of a randomized autodialing system.

A claimant must show that:

  • A call was made to a cellular or wireless phone;

  • By the use of any automatic dialing system or an artificial or prerecorded voice, and

  • Without prior express consent of the called party.

Express consent is consent that is clearly and unmistakably stated (emphasis added). Further, “prior express written consent means an agreement, in writing, bearing the signature of the person called, that clearly authorized the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages…”

The term ‘signature’ includes an electronic or digital form of signature. The burden of establishing that Plaintiff consented to receive text messages falls on the Defendant. But when a defendant can indeed show that consent was given, the TCPA claim will fail.

In the context of an unsolicited fax message, TCPA claims are somewhat different. In those cases, an established business relationship with the recipient is an absolute defense.

An unsolicited advertisement by fax is exempt from all prohibitions when it is from a sender with an established business relationship with the recipient, and the sender obtained the telephone facsimile number through the voluntary communication of such number from the recipient or a directory, advertisement or Internet site available to the public, to which the recipient voluntarily agreed to make its facsimile number available for public distribution.

TCPA cases are very often frivolous, and should always be defended vigorously.

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