Unwelcome "Cell" Text Violated Federal Communications Laws

Verdict a blow to texting telemarketers

By Jon Hood
ConsumerAffairs.com

June 22, 2009
A court ruled Friday that publisher Simon & Schuster violated federal telecommunications laws when it sent out an unsolicited — and, in most cases, unwelcome — text message promoting Stephen King's latest book, conveniently titled "Cell."

The suit, brought in 2006 by Laci Satterfield of New York, alleged that such unsolicited text messages violated the Telephone Consumer Protection Act of 1991. That Act prohibits the use of automatic dialing systems, prerecorded or artificial voices, or the use of fax machines to send unsolicited ads.

The decision, rendered by the Ninth Circuit Court of Appeals, reversed a ruling from the United States District Court for the Northern District of California, which held that the texts were not covered under the TCPA. Specifically, the lower court held that text messages did not constitute an "automatic telephone dialing system" as defined by the statute.

Given the TCPA's relative age and the rapid technological advances made in the last two decades, the seemingly straightforward case presented a number of nuanced issues. The TCPA has, to date, targeted mostly telemarketers and other business that use "robo-calls" or faxes to promote their products and services.

How did Satterfield end up in court in the first place? Her initial story might sound familiar. Caving to her six-year-old son's nagging, Satterfield visited Nextone's website to download a free ringtone. To complete the process, Satterfield had to click through a number of sign-in pages. Eventually, she checked a box next to the words "Yes! I would like to receive promotions from Nextones affiliates and brands. Please note, that by declining you may not be eligible for our FREE content."

Nextone argued that the words "and its affiliates" give it license to give the customer's phone number out to any related campaign. And, sure enough, about a year after downloading her "free" ringtone, Satterfield received a text on her phone advertising horror writer Stephen King's latest book, "Cell."

TCPA provisions can be waived if the consumer has given express prior consent. The lower court had held that Satterfield's act of clicking the box next to the boilerplate provided such express consent, defeating her claims. However, the Ninth Circuit reversed summary judgment on this issue, ruling that there were genuine questions of fact as to whether Satterfield really knew what she was agreeing to.

The court noted that express consent must be "clearly and unmistakably stated," which was not the case here, given that Satterfield really only agreed to receive promotions from Nextones, not Simon & Schuster. The court's refusal to let Simon & Schuster off the hook on this point demonstrates that marketers cannot use vaguely-worded agreements as an excuse to bombard consumers with unsolicited texts or other advertisements.

Since the Ninth Circuit merely reversed a summary judgment holding — rather than ruling outright in Satterfield's favor — the case will now go back to the Northern District for further consideration.

The case has broad implications for modern interpretations of the TCPA, as robo-calls and faxes ride into the sunset and online communities and networking sites pop up around the globe. Only time will tell which activities fall under the umbrellas of "solicitation" and "consent."

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