Washington CEMA Text Message Claims: What Businesses Face

A marketing text sent to a Washington resident’s cell phone without clear, affirmative, advance consent can cost the greater of $500 or actual damages under Washington’s Commercial Electronic Mail Act (CEMA). The claim needs no autodialer and no second message. It runs through the state Consumer Protection Act, so a plaintiff who wins can also recover attorney fees, and class plaintiffs seek the $500 for every text. A company facing one of these suits still has real defenses, starting with its consent records.

What RCW 19.190.060 bans, and the two statutory exceptions

The core prohibition reads: “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,” under RCW 19.190.060. A commercial text is one “sent to promote real property, goods, or services for sale or lease,” according to the definitions in RCW 19.190.010.

The exceptions are in RCW 19.190.070. One covers a wireless carrier texting its own subscribers at no cost to them, unless the subscriber has said they don’t want more. The other applies when “the subscriber has clearly and affirmatively consented in advance to receive these text messages.” A separate subsection protects carriers that act only as intermediaries, unless they’re assisting in the transmission. Outside the carrier exception, there’s no exception for existing customers, so a past purchase doesn’t help by itself.

Mixed messages are where companies get caught. In Gragg v. Orange Cab Co., a federal court in Seattle held on summary judgment that a taxi-dispatch text carrying a plug for a booking app violated the statute, reasoning that “Messages that serve both customer service and marketing purposes” are sent to promote goods or services. The same court said the dispatch notice alone wouldn’t have been a commercial text. My advice: keep promotions out of order and appointment texts sent to Washington numbers.

Wright v. Lyft made the $500 automatic

In Wright v. Lyft, Inc., a 2017 decision answering a federal court’s certified questions, the Washington Supreme Court held that CEMA’s damages provision, RCW 19.190.040, creates no independent action for damages over texts, so recipients sue under the Consumer Protection Act. It then held: “We conclude that RCW 19.190.040 establishes the injury and causation elements of a CPA claim as a matter of law.” In the court’s words, “damages for CEMA violations are automatic.” The parties in Wright didn’t dispute that a text sent in violation of CEMA meets the CPA’s other three elements, and the statute itself calls these practices “matters vitally affecting the public interest” in RCW 19.190.060(2). Whether Lyft actually violated the statute was left to the trial court as a question of fact.

The figure comes from RCW 19.190.040, which sets damages to the recipient of a commercial text sent in violation of the chapter at “five hundred dollars, or actual damages, whichever is greater.” The CPA, at RCW 19.86.090, adds “the costs of the suit, including a reasonable attorney’s fee.” The fee provision is why I treat even a one-text demand letter as a real claim.

Brown v. Old Navy shows how the court reads CEMA

Brown was about email, but it matters for texts too. On April 17, 2025, in Brown v. Old Navy, LLC, the Washington Supreme Court answered a federal court’s certified question and held, over a dissent, that the email subject-line provision, RCW 19.190.020(1)(b), “prohibits sending Washington residents commercial e-mails that contain any false or misleading information in the subject lines of such e-mails.” The court rejected a reading limited to subject lines that hide an email’s commercial nature, though it held that “instances of mere puffery are not prohibited by subsection (1)(b).”

The Brown opinion also restated the damages logic from Wright, which applies to texts as much as email: “Under CEMA, the injury is receiving an e-mail that violates its regulations.” And it declined to follow a narrower federal-court reading: “we are not bound by federal courts’ interpretation of our state laws.” A text defense resting on a favorable federal trial-court reading of CEMA sits on ground Washington’s highest court can take away.

How CEMA differs from the TCPA

Preemption is an uphill argument. With exceptions, the TCPA’s savings clause says it doesn’t preempt state laws that impose “more restrictive intrastate requirements or regulations on, or which prohibits” listed practices, including telephone solicitations, under 47 U.S.C. § 227(f)(1). In Hickey v. Voxernet LLC, a federal court in Seattle found no conflict between the statutes, writing that “CEMA is not an obstacle to the goals of the TCPA,” and separately held that CEMA falls within the savings clause as a prohibition on telephone solicitations, rejecting the argument that the clause’s word “intrastate” leaves interstate texts preempted. Hickey followed earlier decisions from the same district. I’d still preserve the point for an out-of-state sender, but expect trial courts to follow Hickey. Florida’s statute adds another state-law layer, covered in our post on Florida Telephone Solicitation Act text claims.

Who counts as “assisting” a text?

A business can face a CEMA claim over texts it never sent. The statute defines assisting as giving “substantial assistance or support” that enables someone else to send a commercial text, but only when the helper “knows or consciously avoids knowing” that the sender is engaged, or intends to engage, in a practice that violates the CPA, under RCW 19.190.010(1). The definition excludes email service providers acting as intermediaries, and activities related to designing, making, or distributing a technology or product that “has a commercially significant use other than to violate or circumvent this section.”

The federal decisions turn on the facts. In Bottoms v. Block, Inc., a case over referral texts sent through Cash App’s “Invite Friends” feature, the court denied Block’s motion to dismiss in May 2024. It reasoned that “under CEMA an entity does not need to send the text message” and may be liable for assisting, and it read the exclusion narrowly, since otherwise almost every business would escape because “most businesses serve a purpose other than to violate CEMA.” The order addressed only the allegations. Block later moved for summary judgment in a motion the court certified as challenging CEMA’s constitutionality, and the State of Washington intervened to defend the statute. Before any ruling, the parties told the court, according to its April 2025 stay order, that they “have reached an agreement in principle to resolve this action on a class-wide basis,” and a motion for preliminary approval of the settlement was pending as of this post.

A texting-software vendor did better in an earlier case. In Frank v. Cannabis & Glass, LLC, a federal court in Spokane dismissed, with leave to amend, a CEMA claim against the company whose texting platform two retailers used for loyalty texts. The court found the complaint alleged “some form of assistance” but no facts showing the degree of help or the knowledge the statute requires. The plaintiff later voluntarily dismissed the vendor without prejudice. Our post on refer-a-friend texts covers referral features in detail.

Which defenses hold up in a Washington text case?

Consent is the first place I look, and the statute’s wording makes the details matter: the consent has to be clear, affirmative, given in advance, and given by the subscriber. In Gordon v. Robinhood Financial, LLC, a 2024 referral-text case, Washington’s Court of Appeals said “one can reasonably argue that the consent that renders refer-a-friend type of text messages legal is the recipient giving consent to the business that initiated or assisted in transmitting the message.” That was a ruling on frivolousness, not a final answer on consent, but it tells you what to capture: consent naming your company.

Gordon also shows why the plaintiff deserves investigation. According to the opinion, “Gordon and two of his attorneys had manufactured his claim,” and the Court of Appeals held that the trial court “did not abuse its discretion when it found that Gordon’s and his attorneys’ misconduct warranted CR 11 sanctions” for false statements in the pleadings and discovery responses. It reversed two other fee grounds and sent the case back to reconsider the amount. If the sender is the plaintiff’s friend, that belongs at the center of discovery.

The text itself can be a defense. It has to promote something for sale or lease. Hickey dismissed, with leave to amend, a claim over invitations to download a free app that charged users nothing. But Gragg found a free-app plug commercial where the app booked paid cab rides, and the Bottoms court distinguished Hickey where the complaint alleged the business charged fees for some services. Residency matters too: the statute protects numbers assigned to a Washington resident, not Washington area codes, so a class defined by area code deserves a hard challenge. The ban also reaches only a “person conducting business in the state,” under RCW 19.190.060, an element worth testing for a sender with no Washington operations, though the Bottoms court applied it to the business giving help, not the person it helped.

Out-of-state senders should raise the constitutional argument early. In Gragg, the defendants argued under the dormant Commerce Clause that the plaintiff couldn’t prove he was in Washington when the text arrived, and the court held the defense had to be raised in response to the complaint: “The Court finds that the defense is waived.” In a footnote, it alternatively held that the defendants bore the burden and offered no evidence that all of the conduct occurred outside Washington or that the plaintiff got the text out of state. I’d plead it in every CEMA answer for an out-of-state sender, then build that record.

Running a national texting program that reaches Washington numbers

The practical rule is to apply the CEMA consent standard to every number you can’t place outside Washington. That means an opt-in naming your company, captured before the first marketing message, with its date and the language the person saw kept where you can find it later. Keep transactional texts transactional, and treat referral features as your own marketing, because a Washington court may. Carrier registration and content rules sit on top of all this, as our post on carrier texting rules and 10DLC explains.

Records to gather once a Washington text claim arrives

1. Issue a written litigation hold and lock down the texting platform’s send logs, message content, and consent records for every number named in the complaint.
2. Export your opt-out and internal do-not-text logs with dates, so the timeline of every STOP request is fixed.
3. Pull your National Do Not Call Registry scrub records and the registry release dates you used, in case the complaint adds a TCPA count.
4. Collect contracts with texting vendors, lead sources, and referral partners, along with every message template and referral-flow screen.
5. Talk to a lawyer before you respond to the demand or the claimant, and before offering anything to settle.

The firm’s page for TCPA defense attorneys in California covers how claims involving marketing texts sent to Washington cell phones are evaluated, from the records to the first response.

Facing a CEMA text claim in Washington?

If your company has been sued over marketing texts to Washington numbers, the consent records and the wording of each message usually decide how much of the case survives. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving marketing texts sent to Washington cell phones. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.

Sources

Washington’s statute is the Commercial Electronic Mail Act, chapter 19.190 RCW, including RCW 19.190.010, RCW 19.190.040, RCW 19.190.060, and RCW 19.190.070. The Consumer Protection Act remedy is RCW 19.86.090. The federal statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227, and the FCC’s rule is 47 C.F.R. § 64.1200, as published in the eCFR through July 7, 2025.

The court decisions are Wright v. Lyft, Inc., 189 Wn.2d 718, 406 P.3d 1149 (2017); Brown v. Old Navy, LLC, No. 102592-1 (Wash. Apr. 17, 2025); Gordon v. Robinhood Financial, LLC, No. 38623-6-III (Wash. Ct. App. May 2, 2024) (published); Facebook, Inc. v. Duguid, 592 U.S. 395 (2021); Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Gragg v. Orange Cab Co., 145 F. Supp. 3d 1046 (W.D. Wash. 2015); Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125 (W.D. Wash. 2012); Bottoms v. Block, Inc., No. 2:23-cv-01969-MJP (W.D. Wash. May 2, 2024) (order denying motion to dismiss), with later orders of Nov. 1, 2024, Dec. 30, 2024, and Apr. 18, 2025, and the plaintiff’s June 30, 2025 motion for preliminary approval; and Frank v. Cannabis & Glass, LLC, No. 2:19-cv-00250-SAB (E.D. Wash. Oct. 1, 2019) (order granting motion to dismiss with leave to amend), and the plaintiff’s notice of voluntary dismissal of the vendor, filed June 30, 2021.

This post is general information about the Telephone Consumer Protection Act and related laws as of July 7, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.