Interest in mobile marketing issues has lately been high in Congress and the agencies. Currently, Federal Communications Commission (“FCC”) rules under the Telephone Consumer Protection Act (“TCPA”) prohibit the use of automatic dialing systems to make any non-emergency call, including a text message, to a mobile telephone number without prior express authorization. Commercial email messages transmitted to wireless devices are also generally banned, with certain exceptions, under the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act.
The FCC reported in January 2009 that consumer complaints under the TCPA increased by about 65 percent from 2007 to 2008. In a letter on May 7, 2009, CTIA-The Wireless Association (“CTIA”) urged the FCC to aggressively enforce restrictions on unsolicited telemarketing calls and messages to wireless devices. CTIA specifically referred to a perceived rise in consumers receiving calls regarding auto warranties and mortgage loans.
Senator Schumer (D-NY) targeted the same calls in a May 10, 2009, letter to the FTC calling for an investigation into what he described as “intrusive and unsolicited car warranty telemarketing calls.” Just days later, on May 14, 2009, the FTC announced an enforcement action against two Florida-based companies for their alleged responsibility for millions of pre-recorded calls touting extended auto service contracts. The FTC filed complaints against the companies in the Northern District of Illinois, and has obtained temporary restraining orders to stop the alleged practices while the case is pending. The FTC alleges that the companies engaged in unfair and deceptive practices; violated the Telemarketing Sales Rule by calling numbers on the Do Not Call Registry; and concealed their numbers, identities, and sales purpose in calls with consumers.
Senators Snowe (R-ME) and Nelson (D-FL) have also entered the mobile marketing debate by introducing the m-SPAM Act (S. 788), with the stated goal of limiting unsolicited text message advertisements. Both senators are high-ranking members of the Senate Commerce, Science and Transportation Committee.
On April 22, 2009, the FTC released a staff report entitled “Beyond Voice: Mapping the Mobile Marketplace,” which summarized the 2008 town hall meeting of the same name. Most notably, that report announced the FTC’s decision to expedite its regulatory review of the Children’s Online Privacy Protection Rule ("Rule"). The review will begin in 2010, and will specifically assess whether the Rule should be modified to take account of developments in the mobile arena.