Home / Blogs

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

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.

* * *

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.

Visit Page

Filed Under


Comment Title:

  Notify me of follow-up comments

We encourage you to post comments and engage in discussions that advance this post through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can report it using the link at the end of each comment. Views expressed in the comments do not represent those of CircleID. For more information on our comment policy, see Codes of Conduct.

CircleID Newsletter The Weekly Wrap

More and more professionals are choosing to publish critical posts on CircleID from all corners of the Internet industry. If you find it hard to keep up daily, consider subscribing to our weekly digest. We will provide you a convenient summary report once a week sent directly to your inbox. It's a quick and easy read.

I make a point of reading CircleID. There is no getting around the utility of knowing what thoughtful people are thinking and saying about our industry.

Co-designer of the TCP/IP Protocols & the Architecture of the Internet



New TLDs

Sponsored byRadix

Threat Intelligence

Sponsored byWhoisXML API

Brand Protection

Sponsored byCSC


Sponsored byDNIB.com

IPv4 Markets

Sponsored byIPv4.Global


Sponsored byVerisign

Domain Names

Sponsored byVerisign