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Court finds Twentieth Century Fox SMS campaign violates Telephone Consumer Protection Act

The Unites States District Court for the Northern District of Illinois? Eastern Division has found that a Twentieth Century Fox SMS campaign violated the Telephone Consumer Protection Act ? five years after the fact.  

What is interesting is that last month a Chicago court held that SMS messages that are sent without the consumer?s consent could violate the TCPA.  Consent is absolutely essential for SMS marketing. 

?The TCPA generally prohibits the use of an automatic telephone dialing system to place calls to a mobile number without the prior express consent of the recipient,? said Gonzalo E. Mon, attorney at Kelley Drye & Warren LLP, Washington. ?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,? he said. 

On Oct. 1, 2005, movie studio Twentieth Century Fox sent text messages to various consumers advertising the release of its ?Robots? movie on DVD. 

Plaintiff Victor Lozano received the text messages without having signed up for them. Over the next several months, Mr. Lozano said he received additional unsolicited text message advertisements from Twentieth Century Fox.

As a result, he filed a lawsuit alleging that that text-message campaign was unlawful.

Section 227 of the TCPA places certain restrictions on the making of a ?call.?

Twentieth Century Fox initially contended that the court must dismiss Mr. Lozano?s complaint because a text message is not a call under the TCPA.

However, the FCC believes SMS to be equivalent to a call, at least when it comes to marketing communications.

The FCC said:

We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number.

Both the statute and our rules prohibit these calls, with limited exceptions, to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other common carrier service, or any service for which the called party is charged.

This encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.

Warning calls
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 held that the Twentieth Century Fox text-message campaign was subject to the TCPA.

Additionally, the court rejected the defendant?s notion that the TCPA only prohibits calls that result in a charge to the recipient.

?Once again, the lesson is clear,? Mr. Mon said. ?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,? he said.