Monday, July 06, 2009

Telephone Consumer Protection Act Covers Text Messages Sent to Cell Phones

This posting was written by Jody Coultas, Editor of CCH Telemarketing Law Guide.

The Ninth Circuit Court of Appeals, in finding that the Telephone Consumer Protection Act (TCPA) applied to text messages, reinstated a class action against Simon & Schuster filed by a cell phone user who received an unsolicited text message from the company.

The cell phone user filed a TCPA class action after receiving a text message from Simon & Schuster, advertising its publication of a new novel. Simon & Schuster did not actually send the text message, but outsourced the promotional campaign to another company, which obtained a list of individual cell phone numbers from an agent of Nextones. The agent was authorized by Nextones to license the numbers of its subscribers.

The cell phone user had filled out a form stating that Nextones affiliates and brands could send promotional information. The list, in the form of a computer file, was sent to a service company that actually sent out the text messages to the wireless carriers for ultimate delivery to subscribers.

Automatic Telephone Dialing System

The district court granted Simon & Schuster summary judgment on the TCPA claim, finding that Simon & Schuster had not used an automatic telephone dialing system (ATDS) in violation of the TCPA and the cell phone user consented to receiving the message. The TCPA prohibits making calls to cellular telephones using an ATDS unless the call is for emergency purposes or it is made with the prior express consent of the telephone owner.

A genuine issue of material fact existed as to whether the system Simon & Schuster used was an ATDS, according to the appellate court. In order to determine whether a device is an ATDS, the court must determine whether the equipment had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.

The focus is on whether the system had the capacity to store, produce, or call randomly or sequentially generated numbers, not whether it actually did so. Because there was a question as to whether the system in this case had the requisite capacity, the appellate court remanded the case for further proceedings.

Text Message as “Call”

Based on a review of the language and history of the TCPA and Federal Communication Commission (FCC) rules, the Ninth Circuit found that a text message is a call within the meaning of the TCPA.

Because the TCPA was silent on the issue at hand, the court looked to the FCC because it was the agency with the authority to make rules and regulations to implement the TCPA. The FCC had previously determined that a text message falls within the meaning of “call” in the statute. Therefore, the court found that the text message in this case could be considered a call under the TCPA.

Consent to Call

Finally, the district court erred in finding that the cell phone user expressly consented to receiving the text message. Express consent is consent that is clearly and unmistakably stated. In this case, the cell phone user's consent to receive promotional materials from one company could not be construed as consent to receive promotional materials from Simon & Schuster, the appeals court held.

The June 19 decision is Satterfield v. Simon & Schuster, CCH Telemarketing Law Guide ¶31,142. It will also appear in CCH Privacy Law in Marketing and CCH Advertising Law Guide.

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