Court Case Serves as a Good Reminder as to the Perils of Marketing Through Text Messages

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Court Case Serves as a Good Reminder as to the Perils of Marketing Through Text Messages

	By Venkat Balasubramani Tech-Internet Lawyer at Focal PLLC
	March 30, 2010 Views: 8,792 Add Comment

Lozano v. Twentieth Century Fox Film Corp., Case No. Civ. 09-cv-6344 (N.D. Ill) [scribd]

A court in Illinois rejected a motion to dismiss case filed by defendants in a class action brought on behalf of plaintiffs who received SMS spam marketing for an animated film called “Robots”. The court’s ruling is not surprising, given the other cases which have come to a similar conclusion. (Abbas v. Selling Source, LLC; Satterfield v. Simon & Schuster)

Are Text Messages “Calls” Under the Telephone Consumer Protection Act (TCPA): The court grants the FCC’s interpretation some deference and finds that text messages are “calls” for purposes of the Telephone Consumer Protection Act.

Do SMS Spam Plaintiffs Have to Allege They Were Charged for the Text Messages: The court concludes that “the plain language of the TCPA does not require Plaintiff to allege that he was charged for the relevant call at issue in order to state a claim” under the TCPA. The defendants in Selling Source raised a similar argument which the court in that case rejected.

Does Section 227 of the TCPA Violate the First Amendment: First Amendment challenges in the context of laws regulating unsolicited communications rarely get any traction. Predictably, the court in this case rejects the First Amendment challenge raised by defendants.

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Taken together, several recent cases have concluded that: (1) text messages are “calls” under the TCPA, (2) a message can violate the TCPA if it is sent with equipment that has the capacity to send or store messages using a “random or sequential number generator,” and (3) a plaintiff need not allege that he or she was separately charged for the message in order to bring a claim under the TCPA. This does not leave much room for a company trying to market through text messages. Marketers are forced to rely on a recipient’s consent/opt-in, and as the Satterfield case illustrates, this is a risky road to go down.

The cases all acknowledge that the TCPA was not enacted with text messages in mind, since text messaging was not around when the TCPA was enacted. The laws have some catching up to do, and it will be near impossible for the law in this context to keep pace with rapidly changing technologies. Either way, this case serves as a good reminder as to the perils of marketing through text messages.

By Venkat Balasubramani, Tech-Internet Lawyer at Focal PLLC — Follow Venkat on Twitter here.
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