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Court finds buying mobile numbers from third-parties violates Telephone Consumer Protection Act

Autobytel Inc., B2Mobile and LeadClick Media were sued for sending individuals thousands of unauthorized text messages and violating the Telephone Consumer Protection Act.

The plaintiff in the case, Christopher Kramer, and other similarly situated consumers claim that they never opted-in to receive SMS communications from the companies. Additionally, Mr. Kramer said that upon opting out of the SMS communications, he continued to receive them.

?According to the complaint, B2Mobile acquires a list of mobile numbers from a third-party, and then sends text messages to those numbers,? said Gonzalo Mon, an attorney at Kelley Drye & Warren LLP, Washington.

?Christopher Kramer alleges that he received one of those messages without opting-in to receive them, and that he kept getting them after he opted-out,? he said. ?In the lawsuit, Mr. Kramer argued that these actions violated the Telephone Consumer Protection Act.?

Express consent
The suit initiated by Mr. Kramer was filed in United States District Court for the Northern District of California.

As in other similar cases all over the country, the defendants claimed that a text message is not a call under the TCPA and that mobile advertising guidelines are vague in terms of the parameters of what is required for a lawful text-message campaign.

But the defendants should have learned from the mistakes of others.

For example, a court found that a Twentieth Century Fox SMS campaign violated the TCPA in April last year (see story).

In March, a federal district court in Chicago held that SMS messages that are sent to consumers without their consent do violate the TCPA (see story).

In 2010, there was much discussion around whether SMS communications fall under the TCPA. The Federal Communications Commission released a statement to address the matter, claiming SMS to be equivalent to a call, at least when it comes to marketing communications.

Here is the FCC?s official statement as it pertains to text messaging and its role under 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.

The defense
Still, the defendants were very, well, defensive.

The TCPA generally prohibits sending text messages without prior express consent. 

?The defendants moved to dismiss the case, arguing, in part, that the TCPA is constitutionally void because it is vague as to the meaning of prior express consent,? Mr. mon said. ?As a result, they argued, people in the mobile advertising industry do not have notice of the parameters of what is required for a lawful text message campaign.

?The court disagreed, noting that the defendants disregard ample guidance available to ensure compliance with the TCPA,? he said. ?The court cited FCC precedent and various cases, including a recent Ninth Circuit decision in which the court held that text messages were subject to the TCPA and that marketers could not send text messages absent express consent from the recipients.

"The bottom line, again, is that companies need to get express opt-in consent before they send text messages. Advertisers should consult the Mobile Marketing Association's Best Practice Guidelines for tips on how to do that."