Court Says Anti-Telemarketing Law Covers Unsolicited Text Messaging
from the this-is-a-good-thing dept
Via Michael Scott we learn that the 9th Circuit Court of Appeals has found that the Telephone Consumer Protection Act (TCPA) also applies to unsolicited text messages. The TCPA covers certain kinds of commercial marketing over telephones, and has a rule against the use of “automatic telephone dialing systems,” but it wasn’t clear if text messaging was an automatic telephone dialing system. The court has now said yes.
Separately, the case looked at whether or not agreeing to a basic terms of service also represented “express consent” which is needed under the TCPA. In this case, the woman had purchased a ringtone, but did not believe she had consented to commercial text messages. In buying the ringtone, the woman agreed to an extremely broadly worded terms of service that was probably purposely designed by lawyers to cover a wide swath of potential other things — such as allowing the company to let others market things to the user. The question was whether or not other companies, who purchased the phone number from the ringtone company, could then market to the woman. The court here finds that dubious as well, noting that “express consent” is “[c]onsent that is clearly and unmistakably stated,” which the court feels was not the case here, since the consent was only for the ringtone company to market messages, not anyone else (even though the marketing company — in this case Simon & Schuster — noted that the text message was “powered by” the ringtone company): “Thus, Satterfield’s consent to receive promotional material by Nextones and its affilliates and brands cannot be read as consenting to the receipt of Simon & Schuster’s promotional material.”
This ruling isn’t the final say on the matter — as the appeals court was just reversing a lower court’s summary judgment, and telling the lower court that it needs to actually go further in paying attention to the case. However, the points raised above are certainly important ones that I imagine will start showing up in other cases as well. Finally, it’s also worth pointing out that the defendant in this case is Simon & Schuster, rather than Nextones. This does raise some interesting questions. Simon & Schuster believed that it was purchasing the right to contact these phone numbers legitimately via a marketing company partnered with Nextones. It had no idea that the “agreement” may be faulty, but it may now be liable for breaking the law. If that moves forward, you would have to think that Simon & Schuster has an argument to sue either Nextones or the marketing company it worked with for misrepresenting the “explicit consent” on those numbers.