By Kristen Mathews, Thelen Reid Brown Raysman & Steiner LLP
This has been a source of confusion since companies first began to use text messaging to promote their wares. Due to the nature of the technology used to send SMS messages, there are two federal laws which could be read to apply directly to commercial SMS text messaging: (1) the Telephone Consumer Protection Act (TCPA), and (2) the CAN-SPAM Act. A recent case has muddied the waters further.
The TCPA was originally enacted in 1991 to apply to telemarketing sales calls. Later in 2003, the FCC issued a report interpreting the TCPA to apply to SMS text messages sent using an "automatic telephone dialing system."*
The CAN-SPAM Act became effective on January 1, 2004, and it applies to promotional e-mail messages that are sent to e-mail addresses that are composed of a username, an "@" sign, and a domain name. Since SMS text messages are often sent using addresses that have this format, the FCC, in a 2004 report, interpreted the CAN-SPAM Act to also apply to text messages that are sent using this address format. **
In 2005, one court confronted this question head-on. In Joffe v. Acacia Mortgage Corp. (121 P.3d 831, Ariz. App. 2005), the text messages in question were sent prior to the effective date of the CAN-SPAM Act, so the TCPA was the only federal cause of action alleged. The court, referencing but not relying on the FCC’s report, found that the TCPA did apply to the text messages, since they were "calls" made to cellular phone numbers using an "automatic telephone dialing system."
Just recently, however, another court came to a contrary holding in Satterfield v. Simon & Schuster (2007 U.S. Dist. LEXIS 46325, N.D. Cal. June 26, 2007). The court found that the text messages in question were not sent using an "automatic telephone dialing system" and therefore were not covered by the TCPA.
Regardless of whether the TCPA or the CAN-SPAM Act, or both, apply to SMS text messaging, the basic rule is the same: you must obtain affirmative consent from the holder of a wireless device before sending promotional SMS text messages to the device. The CAN-SPAM Act provides considerably more detail than the TCPA, however, regarding the means by which such consent must be obtained.
* Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 FR 44144, July 25, 2003.
** Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 69 FR 55765, September 16, 2004.