Need Local Counsel in Nevada? Give us a call.
Craig K. Perry
Unsolicited Text Messages
The TCPA statute (47 USC § 227) does not make any express reference to text messaging. However FCC’s concern is that changing technology does not render obsolete the TCPA. For example, “'Autodialer' is defined in the act as any technology with the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot skirt consumer consumer requirements thorugh changes in calling technology design [such as SMS texting] or by calling from a list of numbers.” See June 18, 2015 News Release of the FCC, which you can download by clicking here.
FCC RULINGS AND INTERPRETATIONS
The Ninth Circuit Court, in the Satterfield case (below) cited to this FCC Ruling from 2004, stating that text messages SMS are “calls” per the TCPA. To download, click here. To read, go here.
COURT OPINIONS (applying the law to the facts of a particular case)
The Ninth Circuit Court of Appeals has ruled that text messages are considered calls for purposes of the TCPA.
The case is Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009)”
The TCPA makes it unlawful “to make any call” using an ATDS. 47 U.S.C. § 227(b)(1)(A). While the TCPAdoes not define “call,” the FCC has explicitly stated that the TCPA's prohibition on ATDSs “encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls....” In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report and Order, 18 FCC Rcd. 14014, 14115 (July 3, 2003) (hereinafter “2003 Report and Order”). The FCC subsequently confirmed that the “prohibition on using automatic telephone dialing systems to make calls to wireless phone numbers applies to text messages (e.g., phone-to-phone SMS), as well as voice calls.” In the Matter of Rules and Regulations Implementing the Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 19 FCC Rcd. 15927, 15934 (FCC August 12, 2004). In the Notice of Proposed Rulemaking of the CANSPAM Act, the FCC also noted “that the TCPA and Commission rules that specifically prohibit using automatic telephone dialing systems to call wireless numbers already apply to any type of call, including both voice and text calls.” Id. at 15933. Therefore, the FCC has determined that a text message falls within the meaning of “to make any call” in 47 U.S.C. § 227(b)(1)(A). [footnote omitted.]