FCC takes up text message spam
by Dave Nyczepir / Oct 25 2012

The legality of text message spam depends on who you ask.

The mobile industry’s at war over cellular privacy—or free speech—depending on how you look at it.

The Federal Communications Commission said Tuesday that it’s accepting comments on a petition that seeks to have Internet-to-phone text messaging declared a type of autodialing. The technology, which collects cell numbers without consent and then messages them via created email addresses, isn’t currently covered under the Technology Consumer Protection Act (TCPA), and some consider it a loophole for those who want to spam your cellphone. 

Scott Goodstein, founder of the mobile firm Revolution Messaging, filed the petition back in January of this year, but it wasn’t until this week that the FCC offered any signal it may move on the request. Goodstein says he’s out to protect the privacy of mobile users and put a stop to spammers.

A recent example of the practice comes out of the hotly contested Virginia Senate race between former Gov. Tim Kaine (D) and former Sen. George Allen (R). Thousands of voters were on the receiving end of anonymous messages claiming Kaine wanted to impose a "radical tax." Kaine's camp labeled the messages "dirty campaign tricks" and has asked Virginia's Attorney General to investigate. 

Until yesterday, the FCC had been mum on political text message spam since issuing an enforcement advisory back in September, which warned that sending unsolicited political messages to cell phones is illegal under the TCPA, unless prior consent is given.  

In a statement released by his company, Goodstein said he is "excited to finally see a clear end to the mass amount of political text message spam that keeps creeping up in the final days of a heated election.” He expressed some optimism that the FCC’s decision to expedite the petition will mean “an end to unsolicited text messages."

On the opposite side of the issue is Gabriel Joseph, president of ccAdvertising. Joseph tells C&E that his firm intends to submit a comment to the FCC in response to Goodstein’s petition, and he says banning the technology his firm uses to send political text messages would amount to a violation of free speech.

Joseph declined to talk about any of his clients, but calls Goodstein’s FCC petition nothing more than an attempt to “take away Americans’ free speech rights that are now protected by current law, FCC regulations and the Constitution of the United States.” He contends that email-to-phone text messages are perfectly legal, pointing to the CAN-SPAM Act guide put out by the FCC in May of last year.

“If the FCC is allowed to start down the path of restricting free speech rights for emails, now protected by the CAN-SPAM law, where will they stop?” Joseph says. “Will Gmail, Hotmail, Comcast, Cox and other email providers be affected as well? We believe the answer is yes.” 

Joseph is prepared to go to court to defend his right to contact your cell phone and argues Goodstein is neglecting part of the law. Tacked onto the end of the TCPA’s list of off-limits lines is “any service for which the called party is charged for the call.”

“[W]e conclude that the TCPA did not intend to prohibit autodialer or prerecorded message calls to cellular customers for which the called party is not charged,” according to a written statement from the company laying out its interpretation of the law. In an earlier interview with C&E, Joseph claimed that ccAdvertising has developed new technology that can determine who a contact’s carrier is in advance.

“There’s not one carrier out there that doesn’t charge like a landline, and if you’re charged like a landline you get the benefits of a landline,” said Joseph.

It's a gross overstatement according to Goodstein, who notes that millions of Americans are on prepaid plans, pay-as-you-go plans and limited budgets. Goodstein says there's only one way to interpret what Joseph's company is doing -- it's illegal.

“[Joseph] seems to change his story about either how great his secret sauce technology is, how he’s using a specific mechanic to not dial numbers in a certain way, to a First Amendment argument, to now just blatantly saying, ‘I don’t care that users are being charged because, quite frankly, most people have unlimited text plans or unlimited plans,” Goodstein says.

“He has no secret sauce technology,” he says. “He has giant cojones to go against and slap the FCC and TCPA in the face.”

Joseph says he’ll resist any FCC effort to restrict the law, noting that some members of his legal team are former FCC chairmen.

“If they have to regulate calls to 479 million people then we’ve got a problem in our country,” he says. “Am I worried about taking on a free speech case in this era of Citizens United? No.”


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