The federal Telephone Consumer Protection Act (TCPA) is not unconstitutionally vague when it requires that companies obtain a user’s “prior express consent” before sending them text ads, a U.S. District Court recently ruled.
In 2009, Christopher Kramer filed suit against Autobytel, an automotive referral service, as well as B2Mobile, a text message marketer, and LeadClick, a company that solicits consumer names and contact information.
The plaintiff claimed that he received 10 unwanted text messages – or “wireless spam” – sent to his mobile phone, and that he was entitled to statutory damages under the 1991 TCPA. One of the messages allegedly read: “DEAL ALERT: CARS FROM $99/MO! AVAIL. IN YOUR AREA! GO TO: WWW.CARS499.COM PROMO: 39075 FOR IMMEDIATELY LISTINGS CALL 1800-387-6230. TO END REPLY STOP.”
The Web site directed consumers to MyRide.com, a site operated by Autobytel, and the “from” field of the message listed 77893, a code operated by B2Mobile, according to the complaint. Kramer claimed that he replied “Stop” to the number but continued to receive text ads from the same code.
But the defendants argued they were not liable because it was unclear whether or not the TCPA’s requirement of “prior express consent” applied to text messaging.
U.S. District Court Judge Claudia Wilken quickly dismissed the motion, saying the defendants “disregard ample guidance available to ensure compliance” with the statute.
The Federal Communications Commission explicitly stated that the TCPA applied with equal measure to “both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls” in 2003. And in 2009, the 9th Circuit issued an opinion “unambiguously” holding that a text message is a “call” for purposes of the TCPA, the court said.
“Defendants are obliged to examine FCC guidance and court decisions that address express consent for automated marketing under the TCPA,” Judge Wilken wrote.
To read the court’s decision in Kramer v. Autobytel, Inc., click here.
Why it matters: Other courts have similarly reached the conclusion that the TCPA constitutionally applies to text messages, requiring marketers to obtain prior express consent before sending a message. Two federal courts in Illinois recently agreed with the 9th Circuit decision referenced by Judge Wilken in the decision. Because of the unanimity of courts, marketers who send unsolicited text messages without prior express consent from consumers could face litigation or a costly settlement – in 2008, Timberland settled for $7 million after consumers filed a class action lawsuit alleging they received unauthorized texts advertising the company’s products.