INTERNET LAW - Spam Text Messaging is Prohibited under the Telephone Consumer Protection Act

Long ago unsolicited telephone calls from vendors became common in the United States.  The Telephone Consumer Protection Act (TCPA) was implemented as a response to these annoying calls  -yes, receiving unsolicited marketing calls is annoying.  Today, unsolicited text messages from vendors and advertising companies are getting into people’s nerves, just as those calls in the past.Thus, the question is whether the TCPA applies to unsolicited text messages; yes it does. This article provides examples of litigation involving the application of the TCPA to spam text messaging.

The Telephone Consumer Protection Act (TCPA) entered into force in 1992 and is codified as 47 § U.S.C. § 227.  The TCPA prohibits telephone solicitations and the use automated telephone equipment such as the automatic dialing systems and prerecorded voice messages.  An automatic dialing system is an equipment which has the capacity “to store or produce telephone numbers to be called, using a random or sequential generator; and to dial such numbers.”  The TCPA restriction is quoted below,
“(b) Restrictions on use of automated telephone equipment.
(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United
States--
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice--
(i) to any emergency telephone line (including any "911" line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone
service, specialized   mobile radio service, or other radio common carrier
service, or any service for which the called party is charged for the call;
(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B).”

Since the enactment of the TCPA, advertisers had to stop automatic and unsolicited calls in the U.S. or they could face penalties from the Federal Communication Commission –FCC; state lawsuits; or lawsuit filed by individuals claiming up to $500 in damages per call.  Spam text messaging is now the trend on unsolicited advertisement. Can we apply the TCPA’s prohibitions to these unsolicited text messages? As the rule above states, calls to cell phones or other mobile devices for which the recipient has to pay are prohibited.

Although text messaging advertisement emerged after the enactment of the TCPA, most courts have denied defendants’ motions for summary judgment when defendants claim that the TCPA does not apply to spam text messaging.  For instance in Lozano v. Twentieth Century Fox Home Entertainment LLC, 702 F. Supp. 2d 999 (U.S. Dist. Ct., Ill, 2010), plaintiff received unsolicited text messages from the defendant over several months. Plaintiff filed a lawsuit against defendant claiming violation of the TCPA, 47 U.S.C.S. § 227(b)(1)(A)(iii).  Defendant moved to dismiss this action claiming that the text message was not a “call”
under the TCPA. The court denied defendant’s motion to dismiss.  The court held that § 227 of the TCPA applies to text messaging. The court went further and explained that although text messaging was not a capability in 1991 when the law was passed in Congress, the plain meaning of the term ‘call” at that time included communications by phone and did not prohibit application of the statute to text messaging.  The parties agreed that text messaging is a way of communication. The court explained that statutes may apply to technologies not in existence when the statute was drafted. Indeed, the legislative history of the TCPA revealed that Congress anticipated future technologies when they enacted the TCPA. The court held that there is nothing in the TCPA suggesting that a “call” involves only real time voice communication. Thus, the TCPA applies to text messaging communication.

            As this Illinois court, other courts in California and other states have denied motions to dismiss actions under the TCPA involving text messaging when the defendant argues that text messages are not “calls” under the statute.
Therefore, those receiving annoying and costly text messages may write back to the sender a short note warning them of litigation under the TCPA if they do not stop their practice.

Martha L. Arias, Attorney at Law