New Texas SMS Regulation - What About Consenting Profiles?

I know there’s been a lot of buzz around the new Texas regulations that go into effect on Sept 1. But it’s very hard to find concrete information, other than the sparse wording of the bill itself, and people’s speculations. Even if I were to consult legal advice, that’s only one lawyer’s interpretation, and the State Of Texas may disagree. So my head is swimming.

I will likely NOT register with Texas, as that requires a $10,000 deposit (or surety bond), and I feel like unscrupulous people will use this new law to report perceived violations left and right. Then I’ll have to lawyer-up and defend myself, or pay the fines and lose my $10,000 deposit.

But here’s my specific question: Does the law apply to profiles who have FULLY consented to receive texts (by double opting in, and by being able to unsubscribe with STOP at any time)? The problem is, the law text doesn’t define “customer”. The language of the law seems to heavily lean towards “cold calling/texting”, auto-dialers, 3rd party leads lists etc.

But I ONLY send texts to those who have either purchased (making them a current customer, and therefore excluded from this law), or to those who haven’t purchased yet, but DID willfully consent to receiving SMS.

Just want to point out, Attentive (another email/SMS platform for businesses) addressed this, saying that if a customer consents with their standard consent procedures, they are EXEMPT from the law, and you can send these people SMS without issues from Texas. This is what I’m hoping is true for Klaviyo.

Disclaimer: This is just my own interpretation, please do your own research before making legal decisions.

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@alexk - From my understanding, if you already have fully consented profiles in Klaviyo, the new Texas SMS registration law does not automatically block you from messaging them but, if those numbers are Texas-based, you may still be subject to the new Texas registration, deposit, and compliance requirements. The law doesn’t create an exemption just because someone previously opted in.

What this means in practice:

Texas Numbers = Regulated

If a phone number has a Texas area code or is otherwise identified as belonging to a Texas resident, the safest route (per the state’s new rules) is to treat it as subject to the law, even if the person opted in months or years ago.
Existing Opt-Ins Are Still Covered

The regulation focuses on sending commercial SMS into Texas, not on when consent was given. So even pre-existing, fully consented profiles are in scope if they’re in Texas.

This is not legal advice so, if you are still unsure I would recommend consulting with your legal team.

@zacfromson One thing that seems clear to me is that if a Texan ever purchases anything at ANY time, they become a customer, and are exempt from this bill:

In “Sec. 302.058. EXEMPTION: SOLICITATION OF FORMER OR CURRENT CUSTOMERS”, it says:

This chapter does not apply to:

(2) a person who:

(A) is soliciting business from a former or current customer; and

(B) has operated under the same business name for at least two years.

It’s language like this and found elsewhere throughout the Code, that seems to heavily imply the intent of the law is for NON-customers.

Meaning, it seems I CAN’T send an SMS to a Texan who signed up for SMS*, but didn’t purchase anything.

BUT, if they DID purchase something, I can send them SMS, because they are now a “Current Customer”. If someone has purchased from me, I can message them with order updates, follow up to leave a review, customer appreciation discounts, etc.

I’m just a little confused, because Attentive claims on their site, that if a Texan opts-in with their fully compliant opt-in system (which I’m sure is the same on Klaviyo), they are exempt from this law. However, I don’t see where the source for that claim is. I’d be surprised if Attentive didn’t do their research before stating this. Read the first bulletpoint:

https://www.attentive.com/blog/sms-compliance-texas-amendments

(I hope I’m allowed to share this link, Klaviyo admins! I’m not advocating switching to Attentive.)

I’d err on the side of caution and go through the process of registering with Texas and you can get a surety bond so you don’t have to make the full $10k deposit in cash.

This is not legal advice so, if you are still unsure I would recommend consulting with your legal team instead of sources.

@zacfromson - How do you get a surety bond? My client is not willing to pay the $10K deposit in cash. I’m not sure how to explain this step to them. Thanks!

@AJThomas222

Texas' requirement for posting a $10,000 security deposit can be satisfied by obtaining a Surety Bond. This option has a small annual fee rather than paying the full deposit amount which helps you avoid tying up your funds. If you prefer not to get a bond, you can use a Letter of Credit or Certificate of Deposit to show that you have the necessary funds. We always suggest working with your own bank, lender, and legal team to ensure you choose the best option that aligns with your overall goals.

@zacfromson My main hesitation with just simply getting the surety bond (or CD) and moving on, is that I feel like Texas (or unscrupulous residents) will now try to be extra litigious. My company is doing everything by the book in general. But being asked to put up a safety deposit is like being told “we’ll catch you on something, we just don’t know what just yet.”

Hey @alexk,

Just spoke with our team about Attentive’s claim regarding Texas’s mini TCPA law, and I can confirm that Attentive’s advice matches ours. In the lower half of the Attentive article you linked, it does mention that registration is the best path forward, despite mentioning near the top that no changes are necessary. Definitely agree that this is a complex and frustrating situation - would be ideal if the new regulation was a bit more cut and dry.

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