Text + Send = Call? Absolutely!
Fact: There's a federal law that says that you can't make a call to a cell phone number (unless it's an emergency call or the recipient gave his permission to receive the call) using any automatic telephone dialing system or an artificial or prerecorded voice. (Let's call this law the "Telephone Consumer Protection Act", or "TCPA" for short).
Fact: Lots of companies send text messages—not "calls" per se, but messages—to cell phones across the country, and think they can avoid liability under the TCPA.
Why?
Because a text message isn't a "call", it's an SMS (or "short message service"). And that's not a "call", is it?
Well is it?
For the answer, we go to the Court of Appeals for the Ninth Circuit, which just handed down its decision in the case—dare I say, battle royale—of Satterfield v. Simon & Schuster, Inc.
The ruling is important, but even more interesting when read using a Howard Cosell voice. (Hey, it's my blog, and I'm being creative here. Work with me. When I ask you to use your best Cosell voice, please do so. If you need to remember what he sounded like, go HERE.)
Now on to the case....
In one corner we have Satterfield, who received a text message from Simon & Schuster which, she claimed, she did not consent to receive. (Cosell: Horrors abounded for Ms. Satterfield.)
In the other corner we have the famous publishing house Simon & Schuster, which was responsible for sending the text message to Satterfield through a somewhat convoluted affiliate relationship it had with other marketing companies. (Cosell: The tenacity shown by this powerhouse publishing company was nothing short of incredible.)
Let's go to the videotape. Here's a blow-by-blow account of the fight....(you have my permission to read all of this as Cosell).
In the opening round, it's Satterfield—receiving a powerful, hard-hitting text message squarely on her cell phone. It's a promotional message for a new book by Stephen King. Satterfield was totally not expecting that.
Satterfield counters with a litigation uppercut—a federal lawsuit against Simon & Schuster alleging that the publisher violated the TCPA by sending her the unsolicited text message using an automatic dialing system. Simon & Schuster is momentarily stunned by the courage of young Satterfield.
Simon & Schuster counters, arguing that the TCPA only prohibits "calls" and a text message is not a "call". Satterfield is literally being pounded with legal ambiguity. Blinded by legal loopholes, she can barely see the shimmering glimmer of her cell phone nestled in its leather case.
The referee looks to the TCPA for a ruling...but there's no definition for the word "call" under the TCPA. What to do?? It appears that Satterfield is doomed, the victim of a legal rope-a-dope the likes of which have not been seen since Ali sued his former manager back in 1999.
But wait—the Court of Appeals for the Ninth Circuit just jumped into the ring—and brought the FCC with it! Examining the legislative history behind the TCPA, the Court rules that the FCC intended to include "text messages" when it used the term "call" under the TCPA.
It's a victory for Satterfield!
The bottom line: the law can't keep up with the changes in technology, so you have to expect that courts will expand the meaning of older laws to include newer technologies.
The (really bottom) bottom line: if your company is using text messaging to promote its products or services, you need to speak with an attorney about how to do it legally. A year ago I wrote a white paper on how to incorporate text messaging into your marketing plan without violating the law, contact me if you want a copy.
I hope you enjoyed this broadcast.
Fact: Lots of companies send text messages—not "calls" per se, but messages—to cell phones across the country, and think they can avoid liability under the TCPA.
Why?
Because a text message isn't a "call", it's an SMS (or "short message service"). And that's not a "call", is it?
Well is it?
For the answer, we go to the Court of Appeals for the Ninth Circuit, which just handed down its decision in the case—dare I say, battle royale—of Satterfield v. Simon & Schuster, Inc.
The ruling is important, but even more interesting when read using a Howard Cosell voice. (Hey, it's my blog, and I'm being creative here. Work with me. When I ask you to use your best Cosell voice, please do so. If you need to remember what he sounded like, go HERE.)
Now on to the case....
In one corner we have Satterfield, who received a text message from Simon & Schuster which, she claimed, she did not consent to receive. (Cosell: Horrors abounded for Ms. Satterfield.)
In the other corner we have the famous publishing house Simon & Schuster, which was responsible for sending the text message to Satterfield through a somewhat convoluted affiliate relationship it had with other marketing companies. (Cosell: The tenacity shown by this powerhouse publishing company was nothing short of incredible.)
Let's go to the videotape. Here's a blow-by-blow account of the fight....(you have my permission to read all of this as Cosell).
In the opening round, it's Satterfield—receiving a powerful, hard-hitting text message squarely on her cell phone. It's a promotional message for a new book by Stephen King. Satterfield was totally not expecting that.
Satterfield counters with a litigation uppercut—a federal lawsuit against Simon & Schuster alleging that the publisher violated the TCPA by sending her the unsolicited text message using an automatic dialing system. Simon & Schuster is momentarily stunned by the courage of young Satterfield.
Simon & Schuster counters, arguing that the TCPA only prohibits "calls" and a text message is not a "call". Satterfield is literally being pounded with legal ambiguity. Blinded by legal loopholes, she can barely see the shimmering glimmer of her cell phone nestled in its leather case.
The referee looks to the TCPA for a ruling...but there's no definition for the word "call" under the TCPA. What to do?? It appears that Satterfield is doomed, the victim of a legal rope-a-dope the likes of which have not been seen since Ali sued his former manager back in 1999.
But wait—the Court of Appeals for the Ninth Circuit just jumped into the ring—and brought the FCC with it! Examining the legislative history behind the TCPA, the Court rules that the FCC intended to include "text messages" when it used the term "call" under the TCPA.
It's a victory for Satterfield!
The bottom line: the law can't keep up with the changes in technology, so you have to expect that courts will expand the meaning of older laws to include newer technologies.
The (really bottom) bottom line: if your company is using text messaging to promote its products or services, you need to speak with an attorney about how to do it legally. A year ago I wrote a white paper on how to incorporate text messaging into your marketing plan without violating the law, contact me if you want a copy.
I hope you enjoyed this broadcast.
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