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Court Holds Text Message Ad Is Subject to Federal Telemarketing Law

In a recent federal court decision, a consumer alleged that a marketer violated federal telemarketing law by sending several text messages to his cell phone advertising the availability of new movies. The marketer moved to dismiss for failure to state a claim, asserting that the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, which does not define the word "call", does not apply to text messages.

The TCPA prohibits using an automatic dialing system "to make any call . . . 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."

The court denied the marketer's motion to dismiss and held that a text message sent to a cell phone is a "call" under the TCPA. The court rejected the marketer's argument that a call is an oral communication, relying in part on a Federal Communications Commission order explicitly stating that the TCPA applies to text messages, the plain language of the statute, and legislative history. The court also held that a plaintiff does not need to allege that he was charged for receiving the text message to state a claim under the TCPA.

Finally, the court rejected the marketer's argument that the TCPA violates the constitution on First Amendment grounds, holding that the TCPA serves a significant government interest of minimizing the invasion of privacy caused by unsolicited telephone communications to consumers and is not overbroad. The decision is Lozano v. Twentieth Century Fox Film Corp.

The same court issued a similar ruling in December 2009 in Abbas v. Selling Source LLC, although in that case the court granted in part the defendant's motion to dismiss because the plaintiff did not provide details of the text messages he received. The court allowed the plaintiff to file an amended complaint describing the text messages and the parties later settled out of court.

The Ninth Circuit has also held, in Satterfield v. Simon & Schuster Inc., that a text message can be a "call" under the TCPA. And an Arizona state court held that a text message sent to an email address incorporating the consumer's cell phone number and cell phone provider's domain name, that was read on the consumer's cell phone, was a "call" under the TCPA. See Joffe v. Acacia Mortgage Corp.


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