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SMS Advertising Spam

Under the Telephone Consumer Protection Act, commercial entities are barred from freely soliciting customers using a short message service (“SMS”). A SMS typically allows vendors to send short text messages to consumers’ mobile phones. In this case, vendors send text messages to customers, or potential customers, advertising their deals and offers. The Telephone Consumer Protection Act of 1991 (the “TCPA”), codified under Title 47 U.S.C. ยง 227, limits telemarketers from using automated telephone services to target customers using text messages. Automated telephone services, or auto-dialers, use software programs to automatically send text messages to multiple telephone numbers using a telephone number database. Additionally, where the TCPA allows vendors to solicit customers using text message, it requires these vendors to include identification and contact information in the message. Furthermore, the TCPA and Federal Communications Commission (“FCC”) regulations prohibit such messages between 9:00 p.m. and 8:00 a.m. These provisions require solicitors to maintain a “do-not-call” list and honor the National Do Not Call Registry.

Under the TCPA and FCC regulations, companies may send text messages through an auto-dialer to solicit customers if: (1) the customer has given consent to receive such messages, or (2) the message is sent in case of an emergency. These restrictions apply regardless of whether or not customers have placed their numbers on the National Do Not Call List. According to the FCC, in order to send commercial text messages, companies must obtain written consent from customers. For informational text messages, such as those involving political messages and school information, the FCC only requires oral consent.

However, vendors are drawn to text SMS advertising because it allows them to target customers more directly through cellphones. Nonetheless, companies that violate federal standards against SMS advertising face severe legal consequences. For instance, Papa John’s, the American pizza chain, is currently involved in a class action lawsuit, with a class of customers as plaintiffs, for allegedly sending 500,000 unwanted text messages to customers in 2010. Customers explain they received multiple text messages in a string offering deals for pizza, sometimes in the middle of the night. Since the TCPA makes it illegal to send unsolicited text messages to customers who have not opted to receive offers via text message, the potential award in this case may be the largest recovery under the TCPA. A jury could award up to $1,500 per each text message if it finds that Papa John’s intentionally violated the TCPA.

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