Earlier this month, the Federal Trade Commission (FTC) hosted a “Spam Summit” to address consumer protection and privacy issues associated with SPAM and mailware, particularly in connection with new and emerging mobile technologies. One of the prevailing messages of the Spam Summit was that as wireless phone and mobile Internet access use continue to rise, an increasing number of both legitimate and illicit marketing tactics are being – and increasingly will be – directed toward consumers.

Although the SPAM Summit was largely informational in nature (and thus is not expected to result in new FTC regulations in the near term), some states already have begun to enact their own mobile marketing regulations to address this concern. It appears that most states thus far have relied on their existing telemarketing statutes to provide a framework for regulating text messages and other forms of mobile communication. Two recent examples are: 

  • In Texas, HB 143, which is expected to become effective on September 1, 2007, modifies the definition of “telephone call” for purposes of the state’s Do Not Call list to include a “call or other transmission, including a . . . text or graphic message or of an image.” Thus, beginning on September 1, 2007, the Texas Do Not Call law will apply to text- and graphic-based messages such as those sent to and from mobile phones. 
  • In North Dakota, SB 2195, which went into effect April 5, 2007, modifies the definition of “message” under the telephone solicitations chapter of the state code to include any telephone call, including “text or other electronic communication” (in addition to voice communication). Thus, text- and graphic-based mobile phone messages are now clearly subject to North Dakota’s telemarketing laws.

Although the FCC’s telemarketing regulations already are deemed to apply to text messages, these developments at the state level demonstrate that the regulation of text messages under the telemarketing framework is becoming more widespread. Entities that market to mobile phones via text messaging therefore should consider focusing increased attention on state law to ensure compliance and minimize exposure.

About the Privacy Update

Hogan & Hartson frequently publishes the Privacy Update to track privacy developments at the FTC, FCC, and U.S. Congress. Please contact the Hogan & Hartson attorney with whom you work or one of the attorneys listed below if you have any questions or would like additional information about the developments discussed in this document