The TCPA Strikes Mobile Marketers Again

The TCPA Strikes Mobile Marketers AgainThe following is a guest post from Simon Vella, CEO of InvolveMobile

If you have any doubt whether SMS spam falls under the Telephone Consumer Protection Act (TCPA), you will be one of the remaining few in 2010. The TCPA has struck again, with the District Court of Northern Illinois recently upholding the FCC’s view of text messaging in Abbas v Selling Source. In this case, Abbas allegedly received SMS spam messages and sued Selling Source under the TCPA. Most of Selling Source’s arguments were rejected by the court, including their attempt at First Amendment defences.

There are now an increasing number of judgments extending back to 2005 that put SMS spam messages firmly into the sights of the TCPA. With the CAN-SPAM Act only regulating email to sms gateways, it now appears to be the primary vehicle for plaintiffs dealing with unsolicited text messages. Further to this, a Minnesota judge recently rejected the application of the Computer Fraud and Abuse Act to a receipt of text message spam.

While mobile marketing has not yet enjoyed the spotlight it should do, it has also avoided heavy handed regulation which affects other marketing channels. Text message consents often seem to lack clarity for consumers, both through website registrations and mainstream media interaction. The proliferation of mobile cell phone lists in past years shows that consent for mobile direct marketing has sometimes been a murky area. The cases we have seen to date are already having some significant impact on the mobile direct marketing industry, with recent removals of mobile phone lists from circulation by major list providers concerned about massive legal payouts. It gives a welcome reprieve to an industry that will be increasingly under fire.

If 2010 is to be the year of mobile marketing, it will certainly also drag any poorly executed marketing campaigns into the spotlight. Even more importantly, it will put pressure on senators and the congressional committee currently debating the m-SPAM Act of 2009, a bill to prohibit unsolicited mobile text message spam and one which may have great impact on our industry.