Things are getting tricky in the world of SMS campaigns in relation to the TCPA, now that courts are upholding the fact that SMS is considered a “call” as defined by the TCPA and therefore subject to the same strict guidelines as phone solicitations.
We’ve already covered a few cases whereby the sender of so-called “unsolicited SMS” has been found in violation of the TCPA even though a certain amount of ambiguity surrounds the situations, and now it seems Twentieth Century Fox is facing the same scrutiny with an SMS campaign sent almost five years ago.
Back in October of 2005, Twentieth Century Fox sent text messages to various consumers advertising the release of its “Robots” movie on DVD. One recipient of which, Victor Lozano, received the SMS without having signed up for it, and over the next several months, Mr. Lozano said he received additional unsolicited SMS messages from Twentieth Century Fox as well.
Mr Lozano subsequently filed suit against the studio for the “unlawful sending of unsolicited SMS advertisements,” and the court agreed. The studio initially fought the case on the grounds that SMS messages aren’t “calls” as defined by the TCPA, but as we’ve already seen before, they in fact are.
The TCPA applies to certain types of calls, an although the term “call” is not defined, the FCC has determined that the statue covers both voice calls and text “calls” using SMS. As a result, the court found this interpretation to be reasonable and held that the Twentieth Century Fox text-message campaign was subject to the TCPA.
With these new rules defined, it should be interesting to see who else falls victim to TCPA guidelines. Although explicit consent should always be granted before the sending of any SMS messages, covering such under TCPA is murky at best. The TCPA needs to be updated to reflect direct guidelines to SMS, or a new act needs to be developed all together to cater solely to SMS.