There’s long been ambiguity surrounding the use of SMS by marketers and whether or not the sending of which is governed under the Telephone Consumer Protection Act (TCPA), which was originally enacted to watch over telephone-based solicitations. Signed into law in 1991 before SMS was around, recent court cases have challenged whether text messaging is covered under the law.
One such recent case was in Chicago, where a class action lawsuit was filed against a web development, hosting and Internet marketing company for sending “unsolicited” SMS messages via an automatic telephone dialing system (ATDS), which the plaintiffs claim is a direct violation of TCPA laws. The defendant in the case, Selling Source, has filed a motion to have the case dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which state lawsuits with insufficient legal theories underlying their cause of action is grounds for dismissal in court.
Selling Source indicates numerous “holes” in the claims against them, citing several reasons why the sending of SMS messages is out of the scope of basic TCPA laws, and that the plaintiffs didn’t provide sufficient cause to sue in the first place. While some deficiencies were present, the FCC had already ruled that SMS was in fact covered under TCPA laws and considered “calls” just like phone solicitations, and as such, are subject to the same regulations set forth by the TCPA.
In being covered under TCPA laws, a new court decision determined the guidelines apply even if the recipient was not charged for the “call,” which in the case of SMS messages is significant. Since most text messages are subject to some charges, that part of the ruling will not change things for most marketers. The bottom line, and the underlying message, is that explicit opt-ins are absolutely required for any type of SMS campaign to avoid being subject to TCPA violations in any way. Though the ambiguity remains, it’s all but void if the right steps are taken at all times in terms of following industry best practices, guidelines and laws set forth by not only the TCPA, but the MMA and CTIA as well.
The fact that SMS is covered under TCPA laws is both good and bad for marketers utilizing the medium. Being regulated by yet another governing body adds to the complication and worry on behalf of marketers who must apply, and make sure they adhere, to strict opt-in and deliverability standards, while being subject to lawsuits such as the one in Chicago where clear-cut laws under the TCPA are still not fully present. Heavier regulation also means scaring off potential marketers who might want to utilize the effectiveness of SMS, but shy away due to worry about numerous violations potential.
On the other hand, adding layers of consumer protection laws is good for the industry as whole in terms of weeding out the marketers who in fact send unsolicited messages, and violate the numerous laws prohibiting it. In other words, being subject to more regulation will help get rid of the handful of marketers who ruin it for the rest of us. Protecting the consumers is bottom line, and marketers who want to see success with their SMS campaigns need to have that notion in the front of their minds at all times. Heavier regulation will help ensure that’s always the case.
While the rules are still being written regarding SMS and the sending of which, marketers need not worry as long as they maintain strict adherence to simple opt-in best practices that have ruled the industry since the beginning. No matter what new laws or guidelines are enacted in the future, as long as opt-ins are effectively used at all times, marketers should never have to worry about a thing.
