In response to the news that two U.S. Senators have introduced legislation to stop unsolicited text messaging, it might be helpful to clarify whether unsolicited commercial texting is already illegal.

In 2004, the Federal Communications Commission released its Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. The primary purpose of the rules governs commercial email sent to a mobile user with an Internet domain name. (eg; anything with an @’example’.com email address.)   However, the FCC clarified in this rulemaking that short message service/text messaging via an “automatic telephone dialing system” is prohibited under the Telephone Consumer Protection Act (TCPA), which includes all phone numbers registered with the FTC Do Not Call Registry.

To be clear, ‘automatic telephone dialing systems’ are defined as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

Unfortunately, Congress is addressing this topic because the courts who have interpreted the definition of ‘automated dialing systems’ are split. An Arizona appellate court in 2005 ruled in Joffe v. Acacia Mortgage Corp., that messaging sent to a phone number, even with an Internet domain name, violated the TCPA since it could be considered a ‘call’.  However, a California Federal District Court in 2007 in the case of Satterfield v. Simon & Schuster thought that text messaging systems were not automated dialing systems and did not violate the TCPA.  Earlier this year, the Supreme Court refused to hear an appeal of Satterfield, thus keeping the issue unclear until a better case gets brought to their attention.

While there are a number of strong policy arguments to support the FCC and the Arizona court, the California court’s technical analysis that texting is distinct from automated dialing systems is more on-point with this issue since texting was never really perceived by lawmakers when drafting the TCPA.

Whether unsolicited commercial texting is covered under TCPA or not, the industry has already done a great job of self-regulation through the Mobile Marketing Association.  If you are engaged in commercial texting, and haven’t read the latest MMA Guidelines, better read them now rather than wait until the issue is decided by Congress.