Washington State's Consumer Electronic Mail Act vs the Telephone Consumer Protection Act
- Peter Schneider
- Feb 3
- 7 min read
Updated: Feb 4
The Telephone Consumer Protection Act (TCPA) is a federal statute regulating telephone solicitation and telephone call technology.
Each state is free to enact its own telemarketing laws and Washington State has done so, including the Consumer Electronic Mail Act (CEMA) under Chapter 19.190 RCW. In terms of telemarketing (CEMA also regulates some emails) RCW 19.190 regulates text messages.
What is regulated?
RCW 19.190 "Commercial electronic text message" means an electronic text message sent to promote real property, goods, or services for sale or lease.
What is prohibited?
19.190.060 No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service that is equipped with short message capability or any similar capability allowing the transmission of text messages.
How broad is "assist in the transmission"?
"Assist the transmission" means actions taken by a person to provide substantial assistance or support which enables any person to formulate, compose, send, originate, initiate, or transmit a commercial electronic mail message or a commercial electronic text message when the person providing the assistance knows or consciously avoids knowing that the initiator of the commercial electronic mail message or the commercial electronic text message is engaged, or intends to engage, in any practice that violates the consumer protection act. RCW 19.190.010(1).
What is the exception?
19.190.070 The unsolicited commercial electronic text message is transmitted by a person to a subscriber and the subscriber has clearly and affirmatively consented in advance to receive these text messages
What are the damages?
19.190.040 damages "are five hundred dollars, or actual damages, whichever is greater"
CEMA effectively outlaws unsolicited text messages to consumers who have not "clearly and affirmatively consented in advance" to receive them, and unlike the "up to $500" damages of 47 U.S. Code § 227(c). It is always best to remove the discretion of judges and juries when awarding telemarketing damages.
An odd wrinkle of the law
CEMA was originally enacted in 1998 to deal with unwanted commercial email messages. In 2003, the Washington legislature, recognizing the “serious concerns” posed by the increase in unsolicited commercial text messages, amended CEMA to expand its scope of prohibited electronic practices to include the initiation and facilitation of commercial text messages.
CEMA does not create a private right of action, but instead makes a violation of CEMA “an unfair or deceptive act in trade or commerce and an unfair method of competition for the purposes of applying the consumer protection act.” RCW 19.190.060(2). Thus, “a violation of the Consumer Protection Act occurs when a sender” sends a message in violation of CEMA.” Wash. Final Bill Rep., 1998 Reg. Sess. H.B. 2752 (April 6, 1998).
Why do Telemarketer's hate CEMA?
The TCPA's language is pretty broad - telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services. But telemarketers and some judges claim that many unsolicited commercially oriented messages don't fit their narrow definition of selling something so are exempted. For example calls from real estate investors trying to buy your house.
Let's look at some cases that show CEMA's strengths in getting cases to trial but probably would be dismissed under the TCPA. First up is Bottoms v. Block, Inc., 23-1969 MJP, (W.D. Wash. May. 2, 2024). Block Inc. owns the popular Cash App which allows users to send and receive money between other uses at no cost, but they do offer services for fees.
Block created a marketing campaign to encourage Cash App users to invite friends and both could receive $5 if the friend signs up. "[A]ll the user has to do is hit send and the Cash App pre-composed message will be sent to the selected contacts." This would be a classic case of text messages "not selling anything" many judges would dismiss under the TCPA. Of course these text messages attracted a lawsuit and Block unsuccessfully tried to dismiss.
Block argued that it was the Cash App users who where choosing to send the text invitations, not Block.
Bottoms does not claim that Block “initiated” the messages at issues, but only “assisted” in their transmission, the Court need not determine whether Block was so involved that it can be “deemed to have made” them.
But the court found that Block created so much infrastructure around the calls that it fit the definition of assisting them.
Rather, Block created the Cash App, the referral program, created the software that allowed users to select contacts to send the referral to, the application could access users' messaging application, and created a precomposed message that users could use. This process creates easy steps for users to follow in order for the referral message to be sent. The Court finds Bottoms has sufficiently alleged Block provided substantial assistance.
Block argued that the text messages it assisted sending did not fit “commercial electronic text messages” under CEMA because they did not promote real property, goods, or services for sale or lease as required under the statute. The Court disagreed with Block.
The term “commercial” in the context of CEMA, means the text messages were “sent to promote real property, goods, or services for sale or lease.” RCW § 19.190.010(5). Block argues that the text Bottoms received invites her to try the Cash App and receive a $5 discount. (Mot. at 14.) Because Bottoms does not allege that Cash App users pay any money to try the app, the message does not promote any services for “sale or lease.” (Id. at 15.) The Court previously dealt with a similar argument in Wright. In Wright, plaintiff received a text message offering a $25 ride credit from the Lyft app. Defendant argued that, because the $25 credit and the Lyft app itself are free, the text message does not “promote real property, goods, or services for sale or lease.” Id. at 5. This Court found defendants argument to be “too narrow reading of the statute” and contrary to the intent behind CEMA. Id. The Court's reasoning followed the analysis of Gragg v. Orange Cab Co., No. C12-0576 RSL, 2013 WL 195466 at 4 (W.D. Wash. Jan. 17, 2013), where the Honorable Judge Lasnik from this District analyzed a similar invitational offer and found the purpose of the invitational offer “was to promote or encourage the use of defendants' taxi services.” Moore, too, dealt with this same argument by defense counsel and similarly followed the rationale in Wright and Gragg. In Moore, Judge Rothstein found it “sufficient under CEMA that the message be designed to promote, or otherwise have the purpose of promoting, future sales of some good or service.” 2022 WL 3082969 at * 5. As these cases are factually similar to the facts here, the Court is inclined to follow the precedent set by these cases. Because the message encouraged individuals to use Cash App, which offers free services and services as a cost, the Court finds Block's argument fail.
How to Plead a CEMA Claim
If you recall from earlier, there is no private right of action under CEMA, but a CEMA violation triggers liability under Washington State's Deceptive Trade Practices act RCW 19.86. Typically plaintiffs plead both CEMA and RCW 19.86. See this complaint against Capital One, starting on page 15.
Here is an alternate method I've seen, but unlike the Jensen case above, somewhere else in the complaint the plaintiff would have to allege in a little more detail that the defendant assisted in the transmission of the text messages (if that is what happened).
Count 1
1. Washington State’s Consumer Electronic Mail Act (“CEMA”) prohibits initiating or substantially assisting in the transmission of any “electronic text message sent to promote real property, goods, or services for sale or lease”[1] without the explicit permission of the receiving party.
2. (1) No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service that is equipped with short message capability or any similar capability allowing the transmission of text messages.
3. (2) The legislature finds that the practices covered by this section are matters vitally affecting the public interest for the purpose of applying the consumer protection act, chapter 19.86 RCW. A violation of this section is not reasonable in relation to the development and preservation of business and is an unfair or deceptive act in trade or commerce and an unfair method of competition for the purpose of applying the consumer protection act, chapter 19.86 RCW. RCW 19.190.060.
4. The Washington State Supreme Court has held[2] that sending a text message in violation of CEMA is a per-se violation of the states’ Consumer Protection Act statute RCW 19.86, meaning it automatically satisfies all five elements. “In fact, damages for CEMA violations are automatic.” Id.
5. The Washington State legislature determined that “[d]amages to the recipient of a . . . commercial electronic text message sent in violation of this chapter are five hundred dollars, or actual damages, whichever is greater.” RCW 19.190.040(1).
6. The Defendants either initiated or substantially assisted in the transmission of text messages to Plaintiff that promoted the sale of goods or services.
[2] Wright v. Lyft, Inc., 189 Wash. 2d 718, (Wash. 2017)
If you are suing telemarketers in Washington State and CEMA applies, you probably should assert claims under CEMA because damages under telemarketing laws stack, and CEMA is arguably casting a wider net on solicitation texts it covers. A second recent CEMA case to read is Walker-Schaut v. Lido Labs Holding Co., C23-5944 BHS, 9 (W.D. Wash. May. 24, 2024).
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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