Us Law Prohibiting Text Spam is Upheld

Spam of any kind is annoying and time-consuming to deal with. However, if it is delivered via a telephone, it’s also illegal. So what if that telephone spam comes in the form of unsolicited text messaging? A U.S. federal court has answered this question in the form of a ruling and the junk text messengers are not happy.

In the last week of 2010, U.S. District Court Judge Claudia Wilken in Seattle ruled that the federal Telephone Consumer Protection Act (TCPA), which has been interpreted to require that companies obtain users’ “prior express consent” before sending them text ads, is not too vague to be enforced. This ruling clears the way for a potential class-action lawsuit regarding wireless spam.

Why is Texting a Federal Case?

Sending a text message has become almost second nature to anyone with a mobile phone. The facts about usage are staggering. The number of mobile phone subscriptions worldwide reached 4.6 billion in 2010 and is expected to increase to five billion this year, according to the International Telecommunication Union (ITU).  Plus, according to the wireless trade association (CTIA), about five billion text messages are sent each month in the U.S., up from 2.8 billion a year ago.

The surge in text messaging has been largely driven by young people who would rather text than call. As with most communication trends, teenagers have made it a routine way to communicate. According to a Pew Internet & American Life Project survey, about 63 percent of Americans from ages 18 to 27 text messages.

These teens are bringing texting to their parents, who must either learn the technology or forgo communicating with their kids. Pew notes that 31 percent of cell phone owners ages 28 to 39 use text, and 18 percent of those 40 to 49 do.

These numbers represent a huge marketing opportunity for consumer products companies and the inexpensive nature of sending an advertising text message makes this opportunity almost irresistible. The only problem for these texted ads comes from the Telephone Consumer Protection Act (TCPA) – they’re illegal unless prior approval or permission is given by the recipients.

Kramer vs. Spammers

The court case came about because several mobile marketing companies created a text messaging campaign, ruled by the court to be spam, to Illinois resident Christopher Kramer. Given the nature of this type direct marketing, where a very large net is cast in hopes of catching a few customers, thousands of other people were probably reached by this spam. However, Kramer was annoyed enough to take the case to a U.S. District Court.

As reported by ad industry newsletter, MediaPost, Kramer alleged in court papers filed last year that B2Mobile, LeadClick and Autobytel sent him 10 text messages without his permission, including 9 texts that arrived after he expressly opted out of receiving ads. He alleges that the text ads directed him to the site, which in turn directed him to Autobytel’s car portal,

Among other allegations, Kramer said in his complaint that B2Mobile obtained phone numbers from outside companies. Autobytel allegedly had a deal with LeadClick, which allegedly had a contract with B2Mobile. Autobytel was dropped from the case after it settled with Kramer earlier last year.

B2Mobile and LeadClick attempted to convince a judge that Kramer’s lawsuit against them should be dismissed on the grounds that the law banning wireless spam without consent is vague given that it doesn’t specify the types of actions that will constitute consent. The companies argued that the TCPA was “impermissibly vague” and that mobile advertisers are unable to predict what business practices are adequate to obtain consent to avoid liability. Judge Wilken disagreed.

In other recent cases, marketers who were sued for allegedly sending text-message spam attempted to argue that the federal TCPA did not apply to wireless ads. However, the courts have uniformly held that the law applies to text ads. In the most prominent case, the 9th Circuit Court of Appeals ruled in 2009 that book publisher Simon & Schuster might have violated the law by sending unsolicited text messages promoting Stephen King’s book “Cell.”

What This Means for Text Message Advertising

The wireless marketing companies that use text messaging for ads never fail to mention to prospective advertisers that text messages are cheap and effective. They note that a voice mail or email might languish for hours or days before the recipient reads, much less responds to it. Whereas, text message recipients tend to read these missives immediately.

There is no doubt that text messages have more immediate impact than other, more passive, direct response media. However, it is not clear if the longer range effect of a strategically crafted traditional direct mail or animated (flash-based) email has more power to motivate a marketing decision than the short-hand nature of text messages.

What is clear is that act of sending advertising text messages without the prior permission from the user is illegal. Further, any company that sends these unsolicited text messages, even those that are based on other companies’ representations that the users consented to receive the ads, are liable for damages.

Will this ruling stop the text spammers from wasting our time? Probably not. However, it could make it a lot more expensive for them to keep annoying us.