Court Holds Text Message Ad Is Subject to Federal Telemarketing Law
In a recent
federal court decision, a consumer alleged that a marketer violated federal telemarketing law by sending several text messages to his cell phone advertising the availability of new movies. The marketer moved to dismiss for failure to state a claim, asserting that the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, which does not define the word “call”, does not apply to text messages. The court denied the marketer’s motion to dismiss and held that a text message sent to a cell phone is a “call” under the TCPA. The court also held that a plaintiff does not need to allege that he was charged for receiving the text message to state a claim under the TCPA. The decision is Lozano v. Twentieth Century Fox Film Corp., No. 09-cv-6344 (N.D. Illinois, March 23, 2010). The U.S. Court of Appeals for the Ninth Circuit has also held, in Satterfield v. Simon & Schuster Inc., 569 F.3d 946 (9th Cir. 2009), that a promotional text message can be a “call” under the TCPA.
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