A week after reports [1] that publisher Simon & Schuster faces a potential class-action settlement payout totaling as much as $90 million following a text messaging campaign in support of the Stephen King novel Cell, the Mobile Advocacy Coalition--a new organization comprising mobile marketing firms, software providers and SMS aggregators--announced it will lobby the FCC to issue a Declarative Order establishing mobile industry partners as "mere conduits" under the Telephone Consumer Protection Act of 1991. Last week, the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously overturned a lower court decision in the Simon & Schuster case, brought by Laci Satterfield after her son received a text message promoting Cell with the tagline "The next call you take may be your last"--the appeals court ruled that text messages are covered under the purview of the TCPA, which makes it unlawful to make automated calls to wireless handsets.
The court based its ruling on a prior interpretation by the Federal Communications Commission: "The FCC has explicitly stated that the TCPA's prohibition... ‘encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls.' [W]e find that the FCC's interpretation of the TCPA is reasonable, and therefore afford it deference to hold that a text message is a ‘call' within the TCPA." The U.S. District Court for the Northern District of California initially dismissed the Simon & Schuster case, determining that the TCPA did not apply to text campaigns and adding that Satterfield had consented to receive text messages by downloading a free ringtone from an unrelated website. The appellate court rejected both arguments.
According to the Mobile Advocacy Coalition, the Ninth Circuit's ruling "includes instructions that twist the meaning of the Telephone Consumer Protection Act of 1991 in a way that imperils the entire mobile marketing industry. According to the decision, any computer that sends texts is effectively considered an auto dialer, which puts any mobile marketing campaign on the wrong side of the law." The group said it will petition the FCC to issue a Declarative Ruling, with law firm Wiley Rein LLP representing the mobile industry.
For more on the Mobile Advocacy Coalition:
- read this release [2]
Links:
[1] http://www.fiercemobilecontent.com/story/court-rules-against-simon-schuster-text-spam-case/2009-06-23
[2] http://www.fiercewireless.com/press-releases/mobile-advocacy-coalition-comes-forms-lobby-fcc