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Chicago court rules Telephone Consumer Protection Act applies to SMS

A federal district court in Chicago recently held that SMS messages that are sent to consumers without their consent could violate the Telephone Consumer Protection Act. 

The decision echoes many of the conclusions in a previous Ninth Circuit opinion and underscores the importance of getting express consent from consumers before sending SMS messages (see story).

?Mobile marketers would be well-advised to get express consent before sending text messages to consumers,? said Gonzalo E. Mon, attorney at Kelley Drye & Warren LLP, Washington. ?Unless they get consent, marketers are likely to face complaints, lawsuits and significant settlement costs. 

?In recent years, consumers have filed a number of lawsuits against companies that failed to get consent from consumers before sending them text messages,? he said.

For example, one company agreed to pay $7 million to settle accusations of sending unsolicited text messages.  

Making the right call
To avoid becoming a target of these types of lawsuits, marketers should consult with their legal counsel and review the Mobile Marketing Association Consumer Best Practices Guidelines for instructions on getting consent

The Telephone Consumer Protection Act was passed by the United States Congress in 1991 and signed into law by President George H. W. Bush as Public Law 102-243, amending the Communications Act of 1934.

The current version of the statute is found principally at 47 U.S.C. 227.

The TCPA is the primary law in the U.S. governing the conduct of telephone solicitations.

The TCPA restricts the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages received by mobile phones and the use of fax machines to send unsolicited advertisements.

According to Mr. Mon, the TCPA applies to certain types of ?calls.? 

Although the term ?call? is not defined, the Federal Communications Commission has opined that the statue covers both voice calls and ?text calls? using SMS. 

The court found this interpretation to be reasonable and, therefore, held that the text-message campaign was subject to the TCPA.

The court also rejected the notion that the TCPA only prohibits calls that result in a charge to the recipient. 

Tone of suit
For the Chicago lawsuit the defendant is Selling Source, a company that provides Web design, hosting, Internet marketing and ecommerce services.

Plaintiff Sadat Abbas and a group of consumers with similar complaints brought this putative class action against defendant Selling Source in the Circuit Court of Cook County, Illinois.

Mr. Abbas alleges that Selling Source sent him and others like him unsolicited SMS text messages from an automatic telephone dialing system (ATDS)  in violation of the TCPA.

Selling Source removed the suit, and the matter is presently before the court on Selling Source's Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

According to Wikipedia, the Rule 12(b)(6) motion is how lawsuits with insufficient legal theories underlying their cause of action are dismissed from court.

For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.

Selling Source urges that the court should dismiss Mr. Abbas' complaint because: (1) he failed to make a short and plain statement of the claim showing that the pleader is entitled to relief as required by Rule 8(a)(2) of the Federal Rules of Civil Procedure, (2) Mr. Abbas failed to allege that he was charged for the SMS message he received, which Selling Source maintains is required to state a claim under the TCPA, (3) he failed to allege that the equipment that sent the subject SMS message was an ATDS, (4) the TCPA does not apply to SMS messages like the ones allegedly sent by Selling Source because a text message is not a "call" within the meaning of the statute and is not otherwise proscribed by the TCPA,(5) as applied, the TCPA would violate the First Amendment, and (6) as applied, the TCPA would be void for vagueness.

Although there were some technical deficiencies, the court is allowing the plaintiff to redraft the complaint so the case is going to go forward.

Additionally, the court has already said that the TCPA applies to SMS messages, which is not a surprise since the FCC found that SMS messages are indeed calls and that this should guide the court's interpretation of the TCPA.

Here is the relevant part of the FCC order regarding SMS and the TCPA:
We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number.

Both the statute and our rules prohibit these calls, with limited exceptions, to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.

This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.

Opting for opt-in
?This case is not a departure from previous cases,? Mr. Mon said. ?In most respects, the court's conclusions are very similar to the conclusions in the Satterfield case (see story).  

?In fact, the Chicago court cited the Satterfield opinion various times,? he said. ?In both cases, the courts determined that the TCPA applies both to voice calls and text calls. And in both cases, the courts determined that whether the equipment used to send the messages is covered by the TCPA depends on the capabilities of the equipment, not on how the equipment was used. 

?The only thing that's new about this decision is the determination that the TCPA applies even if the recipient was not charged for the call.

?But since most text messages are subject to some charges, that part of the ruling will not change things for most marketers. Again, the bottom line is that marketers must absolutely get consent from consumers before they send them text messages.?

Please click here to get more details on the lawsuit.