SMS text message marketers beware. In a recent decision (Lozano v. Twentieth Century Fox), the U.S. District Court for the Northern District of Illinois ruled that Twentieth Century Fox repeatedly violated the Telephone Consumer Protection Act by sending text messages to consumers without their express consent.
The decision settled a dispute over the meaning of a telephone "call" under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. S 227. The TCPA prohibits certain unsolicited telephone "calls" to cellular telephones. The court held that a text message should be treated as a "call," therefore requiring marketers to have consent before text messaging consumers' cellular telephones. The case illustrates how the meaning of one word can vastly broaden or restrict the affect of a law.
Here, plaintiff, Victor Lozano, filed a class action suit alleging that during a 2005 advertising campaign Twentieth Century Fox ("Fox") caused unsolicited text messages to be sent to Lozano's phone. Fox contended that a text message was not a "call" under the TCPA, and brought a motion to dismiss on those and other grounds. Fox argued that the plain meaning of the word "call" was limited to oral communications between two parties via telephone.
The court disagreed with Fox's characterization of the term. The court noted that because the statute prohibits calls to telephone numbers associated with paging services, a device which cannot receive oral communications, Congress did not intend for the word "call" to be restricted only to oral communications. The court also noted that Congress intended to protect cellular customers, who are customarily charged for incoming calls, from charges associated with unsolicited calls. Cellular telephone users are customarily charged when they receive an incoming text message or telephone call, thus the court found Congress' intent to protect consumers from charges associated with unsolicited marketing calls would be satisfied by interpreting "call" to include SMS text messages.
Given the significant monetary exposure the repeated TCPA violations presents, this decision, which is consistent with other recent rulings, should be reviewed by companies who utilize SMS text messaging as a part of their marketing efforts. Companies should take the proper steps necessary to ensure that they have obtained express consent from those to whom they are sending text advertising and promotional messages.
*Frank Hernandez was formerly with The Lustigman Firm.