In Focus

Text Messages Sent to Cell Phone Could Violate TCPA

A telemarketer could have violated the Telephone Consumer Protection Act's prohibition on using automatic dialing devices to make calls to wireless devices by sending "short message service" (SMS) text messages to an individual, the federal district court in Chicago has determined. The individual could go forward with his putative class action, although he was required to replead in order to provide the telemarketer with the requisite notice of his claims. The court rejected the telemarketer's contention that the TCPA was unconstitutionally vague and violated the First Amendment.

TCPA Violations

The individual was not required to allege that he was charged for the offending SMS messages, the court said. The TCPA did not require that a party called via a number assigned to a cell phone service must be charged for the call to make that call actionable.

The individual sufficiently alleged that the SMS messages he received came from an automated telephone dialing system (ATDS). The TCPA only required that the caller's equipment had "the capacity" to produce or store and dial numbers randomly, not that the caller actually used such capacity, according to the court.

SMS messages were "calls" within the meaning of the TCPA. There was no authority indicating that a "call" had to be "oral." Although the CAN-SPAM Act explicitly applied to SMS messages, that statute stated, "Nothing in this chapter shall be interpreted to override the applicability of" the TCPA.

Constitutionality

Although the TCPA's restrictions on the use of automated dialing equipment—unlike the TCPA's provisions on unsolicited fax advertising—applied to all calls, whether or not they were advertisements, the TCPA's restriction on speech was narrowly tailored to serve a significant government interest, in the court's view. Applying the TCPA to SMS messages advanced substantial government interests in protecting consumer privacy and in shifting the costs of telemarketing practices. The TCPA's private right of action furthered this purpose in a way that the CAN-SPAM Act did not. Telemarketers had alternative means to communicate that did not involve automated message transmission.

The telemarketer's contention that the TCPA's restrictions on the use of automated dialing equipment were unconstitutionally vague was also rejected. The question of whether a "short message service" (SMS) text message was a "call," for purposes of the TCPA, had been addressed by the Federal Communications Commission and other courts prior to the time the telemarketer sent SMS messages to a complaining recipient. These extrinsic aides provided the telemarketer with fair notice of the potential application of the TCPA to its conduct.

Notice Pleading

Although the court determined that the conduct alleged by the individual could violate the TCPA, the individual's complaint failed to satisfy the notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2). After alleging several facts regarding the initial SMS message he received, the individual made broad, conclusory allegations regarding further messages. The complaint did not specify when the later messages were received, what those messages contained, or from what numbers they were sent. The individual was given leave to file an amended complaint.

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