Telemarketers sued for sending text message advertisements still haven’t gotten the message: A “text message” is a “call” under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227.  Therefore telemarketers must obtain prior consent to send text messages advertisements to cell phones just as if they were autodialing cell phones with recorded voice messages.

Last week the the U.S. District Court for the Northern District of Illinois, decided what is now the fourth case affirming the TCPA, which was enacted to protect consumers from unwanted telemarketing calls, also applies to unwanted text message advertising.  Lozano v. Twentieth Century Fox Film Corp., N.D. Ill., No. 1:09-cv-06344, 3/23/10.  The telemarketers had argued text messages were not “calls” because  § 227(b)(1)(A) only refers to “calls,” while § 227(a)(4) refers to both “messages” and “calls.”  The court rejected that argument.

Like Professor Goldman, we’re not sure what it will take for advertisers to get the message.  We’ve been pointing out since 2007 that TCPA also applies to text messages.  And Lozano is now the fourth decision affirming text messages are telephone calls under TCPA.  Satterfield v. Simon & Schuster Inc., 539 F.3d 946, 953 (9th Cir. 2009); Abbas v. Seeling Source LLC, 2009 WL 4884471, (N.D. Ill. Dec. 14, 2009); Joffe v. Acacia Mortgage Co., 121 P.3d 831, 837-38 (2005).  Each of these decisions has affirmed a 2003 FCC opinion that text messages are calls.  In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 F.C.C.R. 14014, 14115 ¶ 165, 2003 WL 21517853 (2003).  This should really be old news to telemarketers.

The result of these decisions is that telemarketers sending text messages must comply with the same TCPA requirements as telemarketers making voice calls.  TCPA prohibits “any call . . . using any automatic telephone dialing system [ATDS] . . . to any . . . cellular telephone service . . .” unless the recipient gave prior express consent.  47 U.S.C. § 227(b) (2006); 47 C.F.R. § 64.1200 (2010).

If telemarketers must continue parsing TCPA to seek shelter from litigants, perhaps they should raise the issue of whether they actually “dialed” telephone numbers within the meaning of the Act.  Like “calls,” TCPA does not define the term “dial.”  Joffe v. Acacia Mortgage Corp. is the only decision addressing this issue.  Citing Webster’s the court concluded “dialing” means “‘operate’ or ‘manipulate’ a device ‘in order’ to make or establish a telephone call or connection.”  Depending on the technology used to send the message, an argument could be made that dialing is not occurring with mobile advertising. 

At the end of the day, however, telemarketers really shouldn’t be sending unsolicited advertisements, voice, text, or otherwise.  The best practices guidelines issued by the Mobile Marketing Association clearly prohibit sending unsolicited messages, require that consumers affirmatively opt-in, and mandate that all messages contain directions on how to opt-out.