Texas’s Mini-TCPA Development — Putting the Registration Certificate Genie Back in the Bottle

Companies marketing by text/SMS don’t just have to worry about the federal Telephone Consumer Protection Act and Telemarketing Sales Rule. In addition to regulation at the federal level, it is critical to monitor state-level developments — and one of the biggest state-level developments in 2025 has been an amendment to Texas’s mini-TCPA.

While Texas’s mini-TCPA includes provisions that will look familiar to folks well versed in the TCPA, it also prohibits sellers from making “telephone solicitation[s] from a location in [Texas] or to a purchaser located in [Texas] unless the seller holds a registration certificate . . . .” Tex. Bus. & Com. Code § 302.101(a). And earlier this year, what qualifies as a “telephone solicitation” was broadened to include text messages. One minor potential problem, however: the statute and its amendments did not explicitly carve out a defense on the basis of consent. In other words, businesses that text message with otherwise compliant consent might still need to comply with the statute’s onerous registration requirements.

Cue Ecommerce Marketers Alliance, Inc. et al. v. State of Texas et al., a case filed by the Ecommerce Marketers Alliance, Flux Footwear LLC (a member of the Ecommerce Marketers Alliance), and Stodge Inc. (a text message marketing platform) naming the State of Texas and the Texas Secretary of State as defendants. Teed up with the help of constitutional claims, the central issue in the lawsuit was the omission in the final amendments of a clear consent defense to the registration requirements.

The plaintiffs moved quickly and aggressively, filing a motion for preliminary injunction. Importantly, for companies who could be targeted with Section 302.101 claims, the defendants responded to the motion by taking the position that the law in fact should be interpreted to include a defense based on consent.

Before the motion for preliminary injunction could be decided, however, the parties filed a joint motion for dismissal without prejudice, explaining:

On September 26, Defendants filed their response in opposition to Plaintiffs’ motion for preliminary injunction. Defendants explained that the Office of the Attorney General of Texas does not understand SB 140 as extending Chapter 302’s requirements to businesses which operate consent-based marketing programs . . . .

. . .

As interpreted by Defendants in their response to Plaintiffs’ motion for preliminary injunction, Plaintiffs . . . and similar businesses are not subject to Chapter 302 and are not required to comply with its registration and disclosure requirements.[1]

Consistent with the joint request, on November 17 the US District Court for the Western District of Texas entered an order explaining that “a ‘call,’ as that term is used in Chapter 302, incorporates Chapter 304’s exemption for a ‘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.’ Tex. Bus. & Com. Code § 304.002(10).” And concluding that “businesses which operate consent-based text message marketing campaigns are specifically exempted from Chapter 302.”[2]

Resolution of Ecommerce by way of an industry-friendly order provides powerful ammunition to companies potentially facing Section 302.101 claims from opportunistic plaintiffs. We’ll continue to monitor this space in the event of a future amendment to the statute and for reactions from the plaintiffs’ bar to this development. 
 

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