Court Says Anti-Telemarketing Law Covers Unsolicited Text Messaging

from the this-is-a-good-thing dept

Mon, Jun 22nd 2009 3:18pm — Mike Masnick

Via Michael Scott we learn that the 9th Circuit Court of Appeals has found that the Telephone Consumer Protection Act (TCPA) also applies to unsolicited text messages. The TCPA covers certain kinds of commercial marketing over telephones, and has a rule against the use of "automatic telephone dialing systems," but it wasn't clear if text messaging was an automatic telephone dialing system. The court has now said yes.

Separately, the case looked at whether or not agreeing to a basic terms of service also represented "express consent" which is needed under the TCPA. In this case, the woman had purchased a ringtone, but did not believe she had consented to commercial text messages. In buying the ringtone, the woman agreed to an extremely broadly worded terms of service that was probably purposely designed by lawyers to cover a wide swath of potential other things -- such as allowing the company to let others market things to the user. The question was whether or not other companies, who purchased the phone number from the ringtone company, could then market to the woman. The court here finds that dubious as well, noting that "express consent" is "[c]onsent that is clearly and unmistakably stated," which the court feels was not the case here, since the consent was only for the ringtone company to market messages, not anyone else (even though the marketing company -- in this case Simon & Schuster -- noted that the text message was "powered by" the ringtone company): "Thus, Satterfield's consent to receive promotional material by Nextones and its affilliates and brands cannot be read as consenting to the receipt of Simon & Schuster's promotional material."

This ruling isn't the final say on the matter -- as the appeals court was just reversing a lower court's summary judgment, and telling the lower court that it needs to actually go further in paying attention to the case. However, the points raised above are certainly important ones that I imagine will start showing up in other cases as well. Finally, it's also worth pointing out that the defendant in this case is Simon & Schuster, rather than Nextones. This does raise some interesting questions. Simon & Schuster believed that it was purchasing the right to contact these phone numbers legitimately via a marketing company partnered with Nextones. It had no idea that the "agreement" may be faulty, but it may now be liable for breaking the law. If that moves forward, you would have to think that Simon & Schuster has an argument to sue either Nextones or the marketing company it worked with for misrepresenting the "explicit consent" on those numbers.

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Filed Under: spam, tcpa, telemarketing, text messages

19 Comments

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Fiercedeity (profile), 22 Jun 2009 @ 3:27pm

Personally, I think "express consent" for things like this should be totally opt-in if it's not directly related to the product you are purchasing. In other words, not though verbiage buried in small text where you click "I agree".
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CleverName, 22 Jun 2009 @ 6:26pm

I thought SMS spam was already illegal.
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Anonymous Coward, 22 Jun 2009 @ 7:03pm

Re:
it is spam therefor illegal if as stated above there was no "express consent", and unless i misunderstood the article that was the main issue.
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Anonymous Coward, 22 Jun 2009 @ 7:34pm

To the extent that I have to pay for text messages I receive then it should certainly be even moreso illegal for these companies to send text messages without explicit and unambiguous consent.
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Steve R. (profile), 22 Jun 2009 @ 8:24pm

Advertising and Privacy
It is unfortunate in this country that the concept of privacy is a twisted farce. Privacy, belongs to the recipient of advertising not the advertiser.

It amazes me that in the name of fostering "business" the public is accosted with telemarketers, junk text messages, and junk mail. Too few people point out that this advertising assault costs the public money, time, and deprives them of full use of their computers, phones, etc. Companies should not be entitled to usurp property that does not belong to them for their use. Usurping property in this manner would be akin to theft. If people want to receive advertising they can opt-in, otherwise companies should simply be prohibited from actively contacting the public.

Another major issue concerning the assault on privacy is the source of this so-called right. Mike notes Simon & Schuster "had no idea that the "agreement" may be faulty". As copyright/patent law have become more onerous; we are finding more and more accusations of supposed "illegal" activity based on questionable grounds. We even have laws now that require third parties (Universities) to "protect" the supposed rights of special interests such as the RIAA and MPPA. We are well on the road to corporatism. Long live the corporation!
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another mike (profile), 24 Jun 2009 @ 11:57am

don't spam locals, they can come over
I've told this story before but it bears repeating.
There's a local company here whose stated business model is to spam-vertise the neighbors. The only business model more DOA is charging for infinity, I think.
Anyway, one of the restaurants in town apparently hired them for their media campaign and they sent me a text ad to my phone. Well I walked over to that restaurant and asked the owner what was up with the spam. He didn't know that he was spamming his potential customers. We sat down at the bar while he got the owner of the spam-vertising company to come over. He told the guy off and canceled the ad contract in front of the entire lunch crowd.
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Anonymous Coward, 25 Jun 2009 @ 8:54pm

Not an Affiliate?
"Thus, Satterfield's consent to receive promotional material by Nextones and its affilliates and brands cannot be read as consenting to the receipt of Simon & Schuster's promotional material."

So was Simon & Schuster not an affiliate?
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Anonymous Coward, 25 Jun 2009 @ 9:04pm

Re: don't spam locals, they can come over
We sat down at the bar while he got the owner of the spam-vertising company to come over. He told the guy off and canceled the ad contract in front of the entire lunch crowd.

The next day, another person like you came in with the same complaint and the owner and advertising guy put on the same little show all over again. And they fell for it just like you did.
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Josh, 26 Jun 2009 @ 7:18am

More important issues here...
The court is saying that any computer capable of generating a list of random numbers (thus every computer, even your cell phone) is an auto dialer if it is sending out text messages. This is absurd, and it could cripple the legitimate participants in the mobile marketing industry.

Please see http://www.mobileac.org
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Anonymous Coward, 26 Jun 2009 @ 1:24pm

Re: More important issues here...
This is absurd, and it could cripple the legitimate participants in the mobile marketing industry.

There's no such thing as a "legitimate" spammer. You sound like Alan Ralsky.
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Josh, 2 Jul 2009 @ 11:00am

Re: Re: More important issues here...
You are missing the point. This has nothing to do with the parties in this case, and whether this party, or any other party is a 'spammer.'

The court, in its ruling, is saying that any computer capable of generating a list of random numbers is an auto dialer if it is sending out text messages.

This DOES affect legitimate uses of text messaging, from colleges sending SMS alerts to their students in the event of emergencies...to legitimate marketing messages. There is such a thing. A simple example: Many stores allow consumers to OPT IN to receive sale alerts via text message. That is not spam. That is requested communication....And under the above interpretation of the law, it wouldn't be permissible.
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K Thompson, 14 Sep 2009 @ 9:47am

Unsolicited Text Messages
I have been receiving text messages from a mortgage company in the middle of the night. Other times I have received the messages after 10:30pm.

I have tried texting back on several occasions asking to be removed from their list.

Received another one last night. I'm sure there has to be some kind of law against this.

I am trying to find out how and where I can report this company.
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Resource Nation, 22 Dec 2009 @ 3:13pm

telemarketing
If you're looking for a great site for finding and comparing telemarketing service proviers, come visit Resource Nation.
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A Moron, 2 Feb 2010 @ 8:15am

telemarketing
The law and the legal system is a joke. You guys ought to be ashamed of yourselves. Ashamed.

Any moron could have told you that people would resent strangers calling them in their homes (or bank owned castles), was an offense against common sense.

Any moron could have told you legal bozos this.

And, just in case you haven't noticed - the computers are still calling, just to show you morons how toothless your laws are.
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not a coward, I just don't feel like registering, 5 Feb 2010 @ 9:14pm

I think companies should be required to state upfront and specifically who they plan to release the customer's information to -- none of this deliberately vague "brands and affiliates" crap buried within the fine print of a privacy policy -- and the company should mention the mode of communication this might entail. To be truly "opt-in" the customer needs to give their fully informed consent to marketing and know exactly who they will be hearing from and how. Lots of misunderstanding and anger could be avoided this way.
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Nations Advance, 28 Mar 2010 @ 7:46am

Depends on the Need
It all depends on the person receiving the calls need for the product being offered. That's why I only call when there is a request made to be called or contacted.
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Hater of telemarketers, 31 Dec 2010 @ 5:53am

Re: Unsolicited Text Messages
Being the recipient of several 1:00 am text message solicitations, I now know the law of these.

No company may call, or send text message unsolicited to any private person after the hour of 9:00pm or before 8:00am. If you receive a call or text outside of the legal times, you may report them to the FCC. Get all of the info you can, and you can even file online. The FCC will investigate, and the company can be fined up to 10k.
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trendy dresses, 3 May 2011 @ 10:08am

Well, they must be collected then.
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dmgg711 (profile), 8 Jun 2011 @ 2:28pm

Unsolicited telemarketing text messages
I called the F.C.C. complaining about receiving telemarketing text message and the CSR replied that they didn't cover text messages, just phone calls. I said the text message was on my cell phone and since I registered on the Do Not Call Registry I felt it should have covered any calls or texts received from that cell phone number. My cell number was being used for telemarketing purposes.

The CSR took my complaint and gave me a reference number and I also gave my home phone number for contact.

I also went into the internet to place my complaints of the telemarketing text messages on my cell phone and typed in the message I received and the telephoning number but no company name was listed.

When I listed all phone numbers on the Do Not Call Registry that should include any messages either through phone call or texting, coming into my cell phone.
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