Advertising Law Blog

On October 1, 2014, an onerous new law took effect in Connecticut (Conn. Gen. Stat. § 42-288a). Telephonic sales calls and text messages that are sent to Connecticut residents without their prior express consent are now subject to an almost unbelievable penalty of $20,000 per violation. That is not a misprint: a single text message could result in a $20,000 penalty.

Specifically, the Connecticut law states that “no telephone solicitor may make or cause to be made an unsolicited, automatically dialed, recorded telephonic sales call to a consumer without such consumer's prior express written consent.” Conn. Gen. Stat. § 42-288a(h). “Telephonic sales call" is defined as “a telephone call made by a telephone solicitor, or a text or media message sent by or on behalf of a telephone solicitor, to a consumer for the purpose of (A) engaging in a marketing or sales solicitation, (B) soliciting an extension of credit for consumer goods or services, or (C) obtaining information that will or may be used for marketing or sales solicitation or exchange of or extension of credit for consumer goods or services.” Conn. Gen. Stat. § 42-288a(a)(8). Note that unlike the federal Telephone Consumer Protection Act (TCPA), this law covers calls even if no autodialer or pre-recorded message is involved.

The increased penalty also applies to do-not-call violations and calls that employ a false or blocked caller ID.

The Connecticut law is in addition to, not instead of, the federal TCPA, although unlike the TCPA, an existing customer exception has been retained.

Meanwhile, New Jersey is considering a law similar to Connecticut’s. In late September, the New Jersey Assembly approved legislation that would prohibit advertisers from sending unsolicited advertisements to New Jersey residents via text messaging.

In the bill, unsolicited advertisement is defined as any message sent, without the prior permission of the recipient, to encourage the purchase or rental of, or investment in, merchandise or services. The exact language of the bill reads as follows: “No person shall send or cause to be sent to a resident of this State an unsolicited advertisement by means of text messaging to a communication device capable of receiving text messaging if the recipient of the message will incur a telecommunications charge or a usage allocation deduction as a result of the message being sent.”

Additionally, the bill requires any telecommunications company that sells, or offers to sell, text messaging services to allow customers to block all incoming and outgoing text messages.

Similar to the Connecticut law, violations would constitute an unlawful practice under the state’s Consumer Fraud Act which is punishable by a monetary penalty of up to $10,000 for a first offense and up to $20,000 for any subsequent offense. Additionally, violations can result in cease and desist orders issued by the Attorney General, the assessment of punitive damages and the awarding of treble damages and costs to the injured party. However, a person may not be held liable for a violation if they can demonstrate by clear and convincing evidence that any unsolicited text advertisement was an isolated message sent no more than one time in a 12-month period. The bill now goes to Governor Chris Christie for signature or veto.