Two New Jersey legislators recently introduced a bill that would regulate text messages. Under the bill, no one may send a text message advertisement to a recipient in NJ if the recipient will incur a charge or a usage allocation deduction unless the sender has obtained prior permission from the recipient. Prior permission must include the number to which the text message advertisement may be sent. In addition to regulating the sending of text messages, the bill provides that no telecommunications company may sell text messaging services to customers in NJ unless the company offers an option to block all incoming and outgoing text messages. Companies that violate the law could have to pay up to $10,000 for the first offense, up to $20,000 for subsequent offenses, and additional payments of up to $30,000 if the violator knew or should have known the recipient is a senior citizen or person with a disability.
It’s too early to tell whether the New Jersey bill will pass, but its introduction demonstrates that regulators are paying close attention to mobile marketing. Regardless of whether or not the bill passes, however, mobile marketers would be well-advised to get express consent before sending text messages to consumers. Unless they get consent, marketers are likely to face complaints, lawsuits, and significant settlement costs. In recent years, consumers have filed a number of lawsuits against companies that failed to get consent from consumers before sending them text messages. For example, one company agreed to pay $7 million to settle accusations of sending unsolicited text messages. To avoid becoming a target of these types of lawsuits, marketers should consult with their legal counsel and review the Mobile Marketing Association Consumer Best Practices Guidelines for instructions on getting consent.