A federal court in Ohio has let a TCPA lawsuit go forward over a text that looked harmless on its face: "May I communicate with you via text?" According to industry coverage, the court found that the message, read in context, might be marketing. For anyone who sends TCPA opt-in confirmation text messages at scale, the case is a useful reminder that a message sent to manage consent can carry the same legal risk as the campaigns it supports.
The Telephone Consumer Protection Act (TCPA) is the federal law that governs automated calls and texts. The ruling is early-stage and fact-specific, so it does not rewrite the rules. It does show how a court may read a "housekeeping" text.
Key takeaways
- In Shafer v. Toyota of Boardman (N.D. Ohio, Sept. 21, 2026), a court denied a dealership's motion to dismiss, finding that two follow-up texts might serve a "dual purpose" of marketing.
- The court looked at the context and purpose of the messages, not only their wording, according to trade and law-firm coverage.
- This is a motion-to-dismiss ruling. The court did not find the dealership liable.
- The disputed texts were sent after the consumer replied STOP, so the case is about messaging after an opt-out, not a standard first-time opt-in flow.
- Whether the reasoning extends to first-time consent requests is an open question.
What the court decided
According to TCPAWorld (opens in a new tab), a law-firm blog that represents TCPA defendants, the dealership first texted the consumer asking whether he wanted to upgrade to a new car. That message was plainly marketing. The consumer replied STOP.
The dealership then sent two more texts: "May I communicate with you via text?" and a question about his availability for a quick call regarding his 2018 Camry. Read alone, neither is a sales pitch. The court found that in context they might have served a dual purpose, including luring the consumer toward a new-car purchase.
A consumer-side law firm, Ginsburg Law Group (opens in a new tab), describes the decision as early-stage. It says the court did not decide the dealership broke the law, only that the claims were strong enough to proceed, and that the court examined the whole conversation rather than one text's wording.
The TCPAWorld author argues that a message's purpose, not its content, is what ultimately matters, and that dual-purpose communications have long been treated as marketing under the TCPA. That is commentary, not a holding.
Two caveats apply. First, the details above come from secondary summaries. Second, the TCPAWorld author notes the dealership did not argue that texts are not "calls" under the statute, so it could still win the case outright.
Is a consent text considered marketing?
Not automatically. Nothing in the coverage suggests the court held that every consent-request text is marketing. The ruling turns on context: a sales pitch came first, the consumer said STOP, and the follow-ups arrived in the same conversation.
The lesson for compliance teams is narrower and more practical. A message can be judged by what it is for, not only by what it says. A neutral-sounding text that sits inside a sales effort may be read as part of that effort.
Whether the same reasoning would apply to a first-time consent request or opt-in confirmation sent before any STOP is not addressed in the sources reviewed. Counsel should assess that question for your program.
What the FCC's revocation rules say about confirmation texts
Texts sent after an opt-out are also regulated directly. The FCC's 2024 consent-revocation order (FCC 24-24 (opens in a new tab)) codified that a text confirming an opt-out request does not violate the TCPA or FCC rules, provided it only confirms the opt-out and contains no marketing or promotional information. As adopted in 2024, it also had to be the only additional message sent after the revocation request.
The same order allowed that confirmation to ask for clarification when a recipient had consented to several categories of texts. The sender must stop all texts requiring consent unless the recipient clarifies they want to keep receiving some, per the FCC order (opens in a new tab).
The rule has since moved. A law-firm summary of a later FCC order, reported as FCC 26-67, says it amends the confirmation-text provision and drops the 2024 "one-time" limitation and the "only additional message" condition, according to Recording Law (opens in a new tab). The same summary says the order lets callers designate an exclusive means of opting out, and that a revocation made in response to a marketing message revokes consent to all future advertising and telemarketing texts from that caller.
The summary excerpt was incomplete, and the order's current text and effective date have not been confirmed here. Check the current version of 47 CFR 64.1200(a)(10)-(12) before relying on any of these details.
What this means for high-volume SMS senders
Even with the open questions, a few operating habits follow from the ruling and the FCC's confirmation-text rules.
Keep confirmation texts clean. The FCC's 2024 rule allowed an opt-out confirmation only if it contained no marketing or promotional information. A confirmation that also pitches an offer, a product or a "while you're here" call to action invites the dual-purpose argument.
Watch the sequence, not just the message. The court reportedly looked at the whole conversation. A text that is neutral in isolation can look different when it follows a promotion and a STOP reply.
Don't re-engage after STOP unless a rule clearly allows it. In Shafer, the follow-ups came after the consumer opted out. A "May I text you?" message sent to someone who just said stop is the fact pattern that drew a lawsuit.
Track what each message is for. Be able to explain, message by message, the purpose of each text in a flow. If a text exists partly to restart a sales conversation, assume it may be treated as marketing.
Account for exposure. A consumer-side law firm reports TCPA statutory damages of $500 per violating call or text, rising to $1,500 if the violation is willful or knowing. At high volume, a flawed template can multiply quickly.
Know where your legal exposure sits. Courts disagree on whether texts are "calls" under the TCPA's Do-Not-Call provisions. The Seventh Circuit held in Steidinger v. Blackstone Medical Services (July 2026) that they are not, which narrows exposure only in Illinois, Indiana and Wisconsin, per Nixon Peabody (opens in a new tab). A federal court in Pennsylvania (Pero v. Brown-Daub Chevrolet of Nazareth, June 2026) held that a text is a call under section 227(c). Nationwide programs can't count on the narrower reading.
What to do now
- Audit every consent-request, opt-in confirmation and opt-out confirmation template. Remove offers, promotional links and sales questions.
- Map your message sequences. Check what a recipient sees in order, especially around STOP replies.
- Confirm that STOP and other opt-out replies halt all non-exempt messaging immediately and across every sequence.
- Document the purpose of each template and who approved the wording.
- Review the current text of 47 CFR 64.1200(a)(10)-(12) with counsel, given the reported FCC amendments.
- Ask counsel whether the Shafer reasoning affects your first-time opt-in flows.
Frequently asked questions
Is a consent text considered marketing under the TCPA?
Not always. In Shafer, a court let a claim proceed because, in context, two follow-up texts might have been meant partly to sell a car. Coverage of the ruling says the court looked at the whole conversation, and the decision does not say every consent request is marketing.
Can I send a confirmation text after someone opts out?
The FCC's 2024 rule allowed a confirmation of the opt-out if it contained no marketing or promotional information, and, as originally adopted, only as a single additional message. A reported later FCC order may have changed the "one-time" condition, so check the current rule with counsel before building a flow around it.
Does this ruling set a national rule?
No. It is a single district-court decision at the motion-to-dismiss stage, based on specific facts. It was not a finding of liability, and its reach beyond that court is for counsel to assess.
Where Flowtext fits
Compliance depends on process as well as wording. Flowtext's compliance tools include automatic STOP and opt-out handling, quiet hours by recipient timezone, and list scrubbing, and our platform is 10DLC registered and TCPA compliant. You can also see how drip sequences and opt-in workflows are set up.
This post is general information, not legal advice. Consult counsel about your own messaging programs.
Tags
- TCPA
- SMS compliance
- opt-in
- consent
- 10DLC