Estimated reading time: 2 minutes, 42 seconds

Telephone text marketing boasts many positive attributes, including higher open rates than email, but ongoing litigation illustrates that the channel can be a troublesome undertaking.

According to, 95% of text messages are read within five minutes of receipt. The organization maintains that text messages can also result in high levels of engagement with potential customers and create more leads and more business. It also says that telephone texts have an open rates that are 10 times high than email.

One challenge, however, is complying with the Telephone Consumer Privacy Act and a myriad of state regulations. Indeed, a handful of well-known brands including Kohl’s Department Stores, Jackson Hewitt, American Express and are engaged in litigation stemming from their telephone marketing programs.

At issue is Telephone Consumer Privacy Act, which requires marketers to get expressed consent from individuals before sending text messages. The act also says marketers must stop sending the texts messages after customers or potential customers specify that they no longer want to receive the messages.

An article in Top Class Actions reports that litigation alleges that Kohl’s has sent out unwanted text messages and required telephone owners to text back “stop” to end the messages. In the litigation, plaintiff Amy Viggiano says she gave Kohl’s permission to send her text messages, but then texted the company with a message that said “please do not send me any further messages.”

Kohl’s, however, requires text recipients to text back “stop” so the company continued to send out the telephone communications. The legal complaint maintains that the Federal Communications Commission has determined that “consumers have the right to revoke consent [to unwanted texts or calls], using any reasonable method including orally or in writing.”

Law360, meanwhile, reports that U.S. District Judge Philip Reinhard has recently decided to let litigation against Jackson Hewitt to continue. In the litigation, Steve Yankee of Michigan maintains that he received daily text messages from the tax preparation company even though he had no account with the business.

Jackson Hewitt had sought to have the case dismissed by claiming that Yankee had no evidence that an automatic dialing system had been used to send out the messages. Due to the volume of text messages that Yankee received, however, the judge decided that it is reasonable to infer that an automated systems was used and ruled that the litigation can continue.

Not all litigation has been successful, however. According to a report from a judge recently dismissed litigation against Vertical Fitness that was filed by Bradley Van Patten of California.

He had previously agreed to receive text messages from a Gold’s Gym franchise when he lived in Green Bay, Wisconsin. He canceled his membership, however, and moved to California. The local franchise then ended its relationship with Gold Gym’s and became Experience Fitness, which is owned by Vertical Fitness. The new gym owner then began sending Van Patten text messages.

Van Patten then responded with the litigation that maintained that he had canceled his membership and therefore should have no longer received the text messages. The judge, however, determined that canceling a gym membership does not also mean that permission for receiving text messages has been revoked.

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