[The] practice of procuring … the transmission of unauthorized or unsolicited commercial electronic text messages to the mobile telephones and other wireless devices of consumers … has caused or is likely to cause substantial injury to consumers that consumers cannot reasonably avoid themselves and that is not outweighed by countervailing benefits to consumers or competition[, which] … is unfair and violates Section 5 of the FTC Act.In other words, it seems, procuring someone to send “unauthorized or unsolicited … text[s]” can itself be an unfair trade practice. While this might just be an additional way of otherwise trying to get at the bad actors in these cases, one can’t help but wonder how far the notion of unsolicited texts as unfair trade practice might be taken. To that end, the FTC announcement of its enforcement actions stressed that the defendants sent text messages to random phone numbers, including, in up to 12% of cases, to consumers who do not have a text message subscription plan, the implication being that the recipients incurred costs to which they did not agreed. That is precisely the harm against which other laws regulating text messaging are designed to protect. Indeed, the TCPA, as administered by the FCC (and interpreted by the courts) makes it unlawful to send text messages to mobile phones without prior express consent. And, as detailed in our entries last fall and spring, the FCC recently raised the consent bar for text messages that are “telemarketing” or “telephone solicitation” (i.e., those that are part of a plan, program or campaign to sell goods/services) to the more demanding and specific prior written, signed consent standard. Significantly, the text messages encompassed in the FTC’s crackdown would all seem to be solicitation, and as the FTC describes them, were not sent with any prior consent of the recipients (written and signed, or otherwise). That would seem to make them unlawful under the TCPA as well. In the past, the FTC largely has left failures to acquire consent for texts to TCPA enforcement, and had even informally indicated it would not apply its telemarketing sales rule (TSR) to texts, only to voice calls. Yet in the fall of 2011, as we flagged, the FTC targeted unsolicited texts, and now it has again. Meanwhile, the TCPA allows those who receive text messages to which they did not consent (and other TCPA-violative calls) to sue the senders, and provides for statutory damages of $500 – $1,500 if the texts were sent “willfully” (which the FCC and courts tend to find fairly easily). This has encouraged a healthy TCPA plaintiff’s bar, which of late has led to significant TCPA class action activity. In fact, depending on how one looks at it, and the source relied upon, TCPA actions are up anywhere from 50% to 80% over the past year. And these claims can lead to settlements in the double-digit millions of dollars if efforts to have them dismissed fail. Adding the implications of the additional unsolicited-text-message counts in the FTC’s spam-text gift card complaints, it appears senders of commercial texts must potentially concern themselves with the FCC, the TCPA plaintiff’s bar and, now, the FTC. Together, these enforcement sources provide ample reason to be scrupulously careful about sending commercial texts only where the necessary consent is present.