In a post last month, we noted that a Chicago court had held that SMS messages that are sent to a consumer without the consumer’s consent could violate the Telephone Consumer Protection Act (the “TCPA”). Since then, another court has come to the same conclusion. In the most recent case, Twentieth Century Fox sent text messages to various consumers to advertising the release of its Robots movie on DVD. A consumer who received the text messages without having signed up for them filed a lawsuit alleging that that text message campaign was unlawful.
The TCPA applies to certain types of “calls.” Although the term “call” is not defined, the FCC has opined that the statue covers both voice calls and “text calls” using SMS. The court found this interpretation to be reasonable and, therefore, held that the text message campaign was subject to the TCPA. The court also rejected the notion that the TCPA only prohibits calls that result in a charge to the recipient.
The TCPA generally prohibits the use of an automatic telephone dialing system (“ATDS”) to place calls to a mobile number without the “prior express consent” of the recipient. An ATDS is equipment that has “the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.” The court held that it is not necessary to prove that the sender actually used the equipment’s automatic capacity, only that the equipment had that capacity.
Once again, the lesson is clear: mobile marketers must get consent before sending text messages to consumers. Without consent, lawsuits are sure to follow and, as the recent decisions suggest, an argument that text messages aren’t subject to the TCPA is likely to fail.