One of the newest types of “marketing” is advertising through Short Message Services (or “SMS”), a messaging system that allows cellular telephone subscribers to use their cellular telephones to send and receive short text messages. An “SMS message” is a text message directed to a wireless device by using the telephone number assigned to the device. When the SMS or “text” message call is successfully made to a recipient’s phone, the cell phone rings or otherwise “beeps” the receipt of the text message. This type of messaging is popular because mobile phones are rarely out of arms reach of their owners, and SMS messages can be received by a recipient anywhere in the world.
Many advertisers have engaged in SMS texting to promote products to thousands of recipients. In addition to encroaching on a recipient’s time, unsolicited text advertisements cost mobile users money because many wireless service providers charge fees for incoming text messages, or apply a usage allocation deduction to the recipient’s plan.
Congress passed the Telephone Consumer Protection Act (TCPA) to regulate the use of automatic dialing machines and pre-recorded voice messages. With the advent of mass “text marketing,” litigation against such mass marketers is being initiated because the TCPA prohibits “unsolicited advertisements,” which includes “any material advertising the commercial availability of any property, goods, or services, which is transmitted to any person without that person’s prior express invitation or permission.”
The penalties for violating the TCPA are substantial, and the Federal Communications Commission (FCC) can enforce the Act, fining the text senders who are in violation. In addition, private claimants can maintain claims for knowing or willful violations of the TCPA for actual damages, statutory damages, and treble damages up to $1,500 for each violation. This has led to a host of class action lawsuits being filed.
Fax, and now text, advertising is a relatively inexpensive way to distribute mass information about products or services; however, it can become very expensive when the advertisements are sent without prior authorization. Significant damages can be recovered for violations, and those who wish to advertise through these forms of media should carefully review the statutes. Ideally, the company sending the advertisement should attempt to get express permission if it does not have an otherwise standing relationship with the recipient. If the recipient requests that the sender discontinue sending such advertising messages, the sender must stop or risk liability.