As digital marketing continues to grow, there are clear indicators that mobile is a key driver of new markets, products and services that delivery digital marketing content. The shifts in the mobile marketing landscape are remarkable. In October 2016, web browsing on mobile devices overtook desktop browsing.\u00a0As of May 2015, more Google searches take place on mobile devices than on desktops in the U.S.\u00a0Marketing in the mobile channel now makes up 21% of online spending, up from a mere 4% in 2010.\u00a0Indeed, real-time, location specific, personalized interactions with customers remains the \u201choly grail\u201d of digital retail marketing.\nThis year has been good to digital retail marketing companies and their clients. Two recent decisions on the Telephone Consumer Protection Act (TCPA) lend clarity around the issues of 1) scope of consent to receive text messages, and 2) conditions under which consent cannot be revoked. The winners in these decisions are companies in the federal 7th Circuit (Illinois, Indiana and Wisconsin) and the federal 2d Circuit (Connecticut, New York and Vermont). These two cases provide much needed clarity around consent so that businesses using text message marketing know when they can rely on the recipient\u2019s consent. As most digital marketers know, the sender of a text message must have prior express consent from the recipient to receive that message.\nThe risk of messaging a recipient without such consent is significant. TCPA cases are often brought as class actions. Liability for a misdirected text message is not singular; claimants will include anyone who may have received the errant text. The cost of such liability could be staggering.\nScope of Consent in the 7th Circuit (Illinois, Indiana and Wisconsin)\nThe scope of a subscriber\u2019s consent to receive text messages was recently examined in the case of BLOW v. BIJORA, INC., Nos. 16-1484, 16-1608. (7th Cir. 2017). In Blow, the plaintiff gave a cell phone number to the retailer through various methods. The plaintiff filed a class action alleging that although she had consented to receive some text messages, the scope and the variety of the text messages she received exceeded the consent.\nThe Blow case sets a critical standard around the issue of the scope of marketing messages that may be communicated to someone who has consented to receive promotional information via text message.\nThe Court\u2019s holding clearly encompasses a wide range of marketing messages and promotional material. \u201cA consumer\u2019s consent to receive promotional information from a retailer is sufficient consent under the federal Telephone Consumer Protection Act (TCPA) to receive other mass marketing texts.\u201d\nIn Blow, despite agreeing that she gave a cell phone number to the retailer plaintiff objected to \u201cthe scope of the marketing messages received.\u201d She argued that she only consented to receive special discount offers, and did not consent to \u201cmass marketing\u201d text messages.\nThe Court noted that customers opt in to receive text messages from this retailer by 1) providing a cell phone number to employees while in the store, 2) texting the store\u2019s name to a number posted in the stores, or 3) filling out a card provided by the store.\u00a0 The card specifically stated that the information would be used solely for providing \u201cexclusive information or special offers.\u201d It is unclear whether the same disclosure was made with respect to the other methods of subscription.\nRejecting the plaintiff\u2019s contention that she had consented to only a narrow set of promotions consisting solely of \u201cspecial discount offers,\u201d the Court cited to the FCC\u2019s position on the scope of consent. The FCC writes the regulations that implement the TCPA. According to the FCC:\u00a0\u201cpersons who knowingly release their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.\u201d 7 FCC Record at 8769, Paragraph 31.\nAccording to the Federal 7th Circuit, the FCC explained that \u201ctelemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.\u201d\nIn addition, the Court rejected a narrow interpretation of \u201cconsent,\u201d relying on a 9th Circuit decision that concluded \u201can effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages.\u201d\nThe key take-away here is that consent, once given, has wide application to a party\u2019s marketing messages and may not be limited solely to specific or limited uses indicted at the time consent is obtained.\nRevocation of Consent in the 2d. Circuit (Connecticut, New York and Vermont)\nThe consumer\u2019s ability to revoke consent to receive text messages was recently examined in the case of Reyes v. Lincoln Automotive Financial Services, No. 16-2104 (2d Cir. 2017).\nIn Reyes, the plaintiff had a contractual relationship with a car dealership from whom she received text messages. Plaintiff filed a class action alleging that although she had consented to receive some text messages, she had revoked that consent.\nThe Reyes case puts limits on a consumer\u2019s ability to revoke consent under the TCPA as a result of certain relationships.\nThis decision from the 2d Circuit is going to be a boost to defense of TCPA cases going forward.\nThe plaintiff leased a vehicle from Ford and financed the vehicle through Ford Credit. In the lease, the plaintiff expressly consented to receive telephone calls from Ford Credit, \u201cincluding but not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails, and\/or automatic telephone dialing systems.\u201d\nThe plaintiff claimed to have revoked consent in writing, producing a copy of the letter allegedly mailed to Ford revoking consent. Ford denied receiving the letter. Plaintiff was able to prove that Ford Credit had received (let alone read) the letter The Court held that whether the revocation was effectively communicated would have been an issue of fact for a jury. However, that decision is irrelevant where, as here, consent to receive text message communications was obtained in connection with a legally-enforceable contractual relationship. Specifically, the Court held that the "TCPA does not permit a party who agrees to be contacted as part of a bargained\u2010for exchange to unilaterally revoke that consent."\nConclusion\nBoth cases are victories for any company providing or utilizing text message marketing. As noted above, both cases provide clearer rules of engagement. The Blow case sets a critical standard the scope of consent to receive promotional information via text message encompasses a wide range of marketing messages and promotional material, including other mass marketing texts. The Reyes case holds that where consent to receive text messages is part of a legally-enforceable contractual relationship, one cannot unilaterally revoke that consent. As a further risk mitigation measure, businesses should review contracts with various stakeholders to make sure there is consistency around issues of consent under the TCPA.