The Seattle Times reprints an SF Chronicle article on the scourge of cell-phone spam.   The article warns of the impending wave of sms spam and implies that wireless companies have more of an obligation than ISPs (or others who provide email services) to block spam.  Wireless companies either offer subscribers the all or nothing choice of blocking all sms messages or receiving all such messages, including sms spam.  Why?  Because “[w]ireless companies make money from every cell-phone message sent and every message received.”

Wireless companies aren’t much more able than ISPs to block spam.  The difference between the two is that average user expects (and maybe even wants) to receive some unsolicited email messages (we have all heard of love affairs sparked by old friends or lovers googling and then emailing each other – this scenario does not seem so common via sms).  The average cell phone user is much more likely to agree to receive messages only from pre-approved senders, but not email.  Wireless companies apparently do not offer the “pre-approved sender” or “safe sender” service.  (The SF Chronicle version of the article delves into whether cell phone service providers have the necessary incentives to introduce adequate filtering mechanisms.  The answer seems to be “NO” from that article.)

On the legal front, the article notes that sms spam is illegal under federal and state law.  It’s worth noting that the primary liability (and the contours of such liability) for sms spam seems far from crystal clear.  The FCC has a rule prohibiting unsolicited emails sent to wireless devices, but this rule is thought not to apply to phone-to-phone text messages.  Some state laws explicitly prohibit unsolicited commercial electronic sms.  For example, Washington law (RCW § 19.190.060) provides:

No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service that is equipped with short message capability or any similar capability allowing the transmission of text messages.

[Note: the statute is different from Washington’s spam email law because it applies to all messages, not just misleading messages.  The statute seems to carve out intermediary liability (e.g., for cellular providers) but contains some imprecise language.]  

How about federal law?  A quick search unearths one case holding that sms spam is prohibited by the Telephone Consumer Protection Act (42 U.S.C. § 227): Joffe v. Acacia Mortgage Corp., 121 P.3d 181 (2005), review denied, 2006 Ariz. Lexis 68 (May 23, 2006).  Joffe analyzed whether “text message solicitations” sent by Acacia mortgage company to plaintiff violated the TCPA.  The case turned on two questions – whether Acacia “called” Joffe, and whether it used an automatic dialer to do so.  

On the first question, the court concluded that Acacia initiated a “call” since the communications were sent to an address derived from plaintiff’s telephone number, and that upon receipt, the emails initiated a communication based on the telephone number.  The court seemed to rely heavily on the fact that the communications were addressed to plaintiff’s telephone number, rejecting Acacia’s argument that the communication did not constitute a call because there was no “potential for a two-way voice intercommunication.”  Although Acacia’s position seems defensible, its argument that the TCPA requires two way communication doesn’t seem terribly strong, considering other TCPA prohibitions on messages rather than conversations.  The better argument may have been that the intrusion presented by a text message is different from a phone call or message (more like an unsolicited email), and an unsolicited text message should therefore be governed by CAN SPAM and not the TCPA.  Acacia made a variation of this argument (that CAN-SPAM applied to email messages sent to cellphones – obviously because CAN-SPAM is more permissive than the TCPA).  Under CAN-SPAM, email messages that are not misleading are not prohibited, unless the sender failed to comply with a recipient's opt out request or clearly label the communications as solicitations.  On this point the court looked to FCC interpretive rules that CAN-SPAM does not apply to sms spam, and to deigned legislative intent that CAN-SPAM does not provide the sole regime for regulating these types of messages.  (Arguably, both statutes apply.)

This is a pretty tricky issue, and one (I suspect) which turns on constantly changing technology and options offered by cellular companies to their customers.  For example, consider that Verizon offers a Verizon “vzmail server” with its PDAs.  This service allows you to receive emails sent to your email address on your PDA.  The service accesses emails sent to your email account and forwards these emails to an address which correlates with your telephone number ([email protected]).  Under Joffe's analysis, emails received on a PDA using this service may trigger the first prong of the TCPA analysis.

With respect to the second issue (whether Acaia used an auto dialer) the court concludes that any system or equipment which has the capacity to store telephone numbers using a random number generator and to dial such numbers constitutes an “automatic telephone dialing system”.  The court relied on the fact that the equipment used by Acacia had the capacity to randomly generate numbers and dial such numbers – the court glosses over the fact that the system didn’t “dial” the numbers in the conventional sense.

Other quick related thoughts:

• state courts have exclusive jurisdiction over TCPA private actions
• lack of personal jurisdiction will be much more difficult to argue with respect to sms spam (the area code is a likely geographic designation of the location of the recipient)
• sms spam seems less effective than email spam (at the least, purchasing via mobile phones has been much slower to catch on, so recipients are much less likely to purchase at the click of a button) 
  
• the scope of advertiser liability may be different under the TCPA as opposed to under CAN-SPAM
  

The bottom line: it seems unclear whether CAN-SPAM or the TCPA (or both) apply to sms spam.  The statutes do not specify and there is not much caselaw guidance.  The ambiguity is exacerbated by the shifting technological paradigms.  As always, sender beware!