Earlier this year, Texas amended its telemarketing law to apparently impose onerous registration obligations on businesses engaged in text message marketing. Naturally, this triggered concern among clients – particularly among those operating opt-in programs – as they worked to determine whether and how the law now applied to them. Texas regulators have now offered clarifying guidance: “any business that sends text messages with prior consent of the consumer is not required to complete the Telephone Solicitation Registration Statement.” In other words, the registration requirement does not apply to businesses that text Texas consumers only after obtaining valid opt-in consent.  

This development follows an Ecommerce Innovation Alliance's legal challenge, which resolved after the Texas Attorney General's Office explained that it does not interpret the amendment as extending the registration requirements “to businesses which operate consent-based marketing programs.” Instead, the asserts that the term “call” is defined in reference to a separate chapter of the law that exempts any “transmission made to a mobile telephone number as part of an ad-based telephone service, in connection with which the telephone service customer has agreed with the service provider to receive the transmission.” 

This interpretation arguably disregards that the registration requirement is triggered by a “telephone solicitation” – a term specifically amended to include “a transmission of a text or graphic message” – rather than the separately defined “telephone call.” However, the AG maintains that its view is “mandated by the ordinary meaning of the word ‘call’ [and] by context of the overall statutory scheme.” In any event, for now, the AG's guidance indicates that consent-based text marketing is exempt from the registration requirement. 

According to the EIA, the Texas Secretary of State has agreed to formally request an Attorney General Opinion to reinforce this position. Although the current guidance is merely persuasive, a published AG Opinion will bind Texas in future proceedings and provide additional assurances to businesses engaged in consent-based text message marketing.  

What If My Business Has Already Registered?

Businesses that previously registered are unlikely to be able to rescind their approved status or receive a refund. However, a business may request that its status be updated from “Active” to “Closed” by notifying the Secretary of State, cancelling its security, or declining to file a quarterly update. 

If a business has a pending application before the Texas Secretary of State, official guidance provides methods through which it can submit a written request to withdraw the application, whether in-person or through mail, fax, or email.