CAN-SPAM Targets Text Messaging

As people move toward using solely a cellular telephone as opposed to a residential landline, marketers have begun to try to contact those individuals through wireless means. The Federal Communications Commission, Federal Trade Commission and Congress have been quick to follow with laws regulating this new market and technology.

Last year, Congress began its efforts to curb e-mail spam by enacting the CAN-SPAM Act, which took effect Jan. 1. This created disclosure requirements for commercial e-mails, plus a requirement that senders provide a method for recipients to opt out of receiving further messages.

Violations are subject to injunctive relief, actual damages and fines ranging from $250 per violation not to exceed $2 million. Deceptive commercial e-mail also is subject to laws banning false or misleading advertising.

In August 2004, the FCC expanded its regulation of spam to the realm of text messaging, adopting rules to implement CAN-SPAM as applicable to wireless devices, which mainly include cellular phones and some personal digital assistants. These rules took effect Oct. 18.

The thrust of the new CAN-SPAM rules is the prohibition against sending “mobile service commercial messages” to an address that includes a reference to a domain name that has been posted on the FCC’s wireless domain names list for at least 30 days. To create this list, the FCC is requiring all commercial mobile radio service providers to file the names of all electronic mail domain names used to offer subscribers text messaging specifically for mobile devices.

To send mobile service commercial messages, a person or entity first needs express prior authorization of a cellular telephone service subscriber. This applies to all messages that are commercial ads or promotions of a commercial product or service, including content on a Web site, sent to a wireless device.

The “express prior authorization” requirement may be satisfied by oral or written means, including electronic methods. Written authorization must include the signature of the subscriber, and authorization, whether oral or written, must be obtained before the message is transmitted. Also, the following disclosures must be provided to the subscriber:

· That the subscriber is agreeing to receive mobile service commercial messages sent to her wireless device from a particular sender, clearly stating the sender’s identity.

· That the subscriber may be charged by her service provider in connection with the messages.

· That the subscriber may revoke authorization to receive these messages at any time.

· The electronic mail address to which messages can be sent or directed.

Senders must provide an e-mail address or other Internet-based mechanism that lets subscribers request the sender cease sending commercial messages. This address or mechanism must remain capable of receiving subscriber requests within 30 days of the transmission of the message. Senders of such messages must honor subscribers’ requests not to receive further messages within 10 days of getting requests.

The new CAN-SPAM rules apply to senders transmitting text messages as electronic mail or through a Web site from a wireless provider using a domain name, or what appears to be an electronic mail address. But these rules do not cover text messages sent from one cellular phone to another.

The rules also don’t apply to senders transmitting transactional or relationship messages to subscribers. These include messages confirming or completing a commercial transaction; providing warranty, recall or safety information; to provide account balance information; to provide information related to an employment relationship; or to deliver goods or services pursuant to a previous agreement.

A message to a subscriber about a product recall involving a recently purchased vehicle would not be prohibited. Also permitted is a transmission by a subscriber’s cellular telephone service provider to inform her of the amount of minutes remaining on her plan.

Also noteworthy is the FCC’s delineation between the new CAN-SPAM rules and the already existing rules under the Telephone Consumer Protection Act. The TCPA prohibition against any call using an automated telephone dialing system or artificial or prerecorded message to any wireless telephone number encompasses both voice calls and text calls, including short message service text messaging calls to wireless numbers. The CAN-SPAM rules, in comparison, prohibit commercial electronic messages sent to any address using a domain name that appears on a list maintained by the FCC.

While the FCC, in adopting the CAN-SPAM rules, chose not to create a registry of individual e-mail addresses, instead opting to require registration of domain names, it is worth noting that text messages transmitted via automated dialing systems are required to comply with the no-call registry pursuant to the TCPA. Therefore, text messaging calls sent via the latter method must be scrubbed against the national list.

Only a few states prohibit commercial text messaging, including California, Pennsylvania, Rhode Island and Washington. In general, these laws provide for only two instances in which sending such a message is permitted: When the cellular telephone service provider directs the sending of the message and no cost is incurred to the recipient, and when the recipient’s affirmative consent has been received in advance.

Though a few other states, including New Jersey and New York, have recently considered similar legislation, it appears that state legislatures are relying on the federal regulations to decrease the amount of spam received by cellular telephone subscribers.

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