Two Investors, $200k Each, and They Both Won

Introduction

I have spoken recently with two investors who each paid over $200,000 in legal defense costs over texting.

Both of them won.

It still cost them over $200,000.

That is the part of this conversation that gets skipped. The debate usually centers on whether mass texting is legal, as though the answer determines the outcome. It does not. You can be right and still be out six figures, because being right is something you prove after the filing, the discovery, the depositions, and the attorney hours.

Neither of these operators did anything they believed was reckless. Both thought they were operating inside a defensible gray area. Both were vindicated. Both would tell you the vindication was not worth what it cost.

What the FCC Actually Says

Worth reading the language directly rather than the version that circulates in masterminds.

On how texts are classified:

"Robotexts. Text messages are generally treated as a type of telephone call subject to the requirements of the TCPA, including do-not-call provisions that govern commercial advertising messages and restrictions on the use of automatic telephone dialing systems. In addition, text messages are subject to the TICIDA, which prohibits Caller ID spoofing that is undertaken for fraudulent or harmful purposes."

And on consent:

"FCC rules ban text messages sent to a mobile phone using an autodialer unless the phone owner previously gave consent to receive the message or the message is sent for emergency purposes."

"Commercial texts require written consent; for informational texts, your consent may be oral."

"FCC rules apply even if you have not placed your mobile phone number on the National Do Not Call Registry."

Three things in that language deserve attention.

A text is a call. Every intuition built around "it's just a text, it's less intrusive than calling" has no standing in the regulatory framework. The rules that govern phone calls govern texts.

Consent is the pivot, not intent. The rule turns on whether the recipient previously agreed to receive the message. It does not turn on how polite the message was or whether you meant well.

The Do Not Call Registry is not the boundary. Scrubbing against DNC is a reasonable practice and it does not resolve this. The rules apply regardless.

The Gray Area, Honestly Described

The argument most wholesalers and agents rely on is that they are not soliciting - they are making an inquiry about a property rather than advertising a service, which they read as placing them outside the commercial advertising provisions.

That argument is not frivolous. It has succeeded. It has also failed.

Here is what it does not do: it does not stop a lawsuit from being filed. A defense that eventually prevails is still a defense you paid for, which is exactly what happened to both operators above.

And whether it prevails depends on facts you may not control - the specific message wording, how the list was compiled, what your platform did technically, and the court district you land in. Districts have reached materially different conclusions on similar facts.

The direction of travel matters more than the current state. The gray is turning black and white. Regulatory attention on robotexts has increased, consent requirements have tightened, and the plaintiff's bar has industrialized this area. Anyone building a marketing plan on the assumption that ambiguity will persist is planning around a condition that is actively eroding.

The Slightly More Defensible Version

If texting stays in the mix, the least exposed version is one-to-one messages sent from a phone by a human, with no automation at all.

No autodialer. No platform blasting a list. A person typing a message to one recipient.

That is meaningfully different in both posture and volume - and the volume part is the point. It does not scale, which is precisely why it does not carry the same profile. If you are texting at a volume that requires software, you are in the category the rules were written about.

What I Actually Recommend

This is marketing advice rather than legal advice, and I want to be clear about which one I am qualified to give.

Move budget toward channels with cleaner compliance profiles. Direct mail. PPC. Pay-per-lead. SEO.

Every one of those either reaches people through a permitted channel or waits for the seller to raise their hand first. Direct mail has the longest track record in this business and no TCPA exposure. PPC and SEO bring you inbound leads who initiated contact, which is the strongest consent posture available. PPL puts the sourcing and its associated risk on a vendor.

None of those are as cheap per touch as blasting a list. That comparison is incomplete unless you price the tail risk, and a six-figure defense on a suit you win is the number that belongs in the calculation.

The Practical Read

Do what you want. I am not your lawyer and this is not legal advice.

But I would ask two questions before running another campaign.

If someone filed against me tomorrow, what would my consent records look like? If the answer is that you do not have any, that is your answer.

Can my operation absorb $200,000 in defense costs on a case I win? For most operators reading this, that number ends the business regardless of the verdict.

The two investors I spoke with both won. Ask yourself whether you would consider that a good outcome.

Not legal advice. Rules change and enforcement varies by jurisdiction and court district. Consult a qualified attorney before making compliance decisions for your operation.

FCC language quoted from Unwanted Communications and Stop Unwanted Robocalls and Texts. Verified September 2026.