The federal Ninth Circuit Court of Appeals has ruled that a text message sent to a cell phone for marketing purposes is a “call” for purposes of Do-Not-Call violations of the federal Telephone Consumer Protection Act (TCPA).  The court deferred to the Federal Communications Commission’s interpretation that TCPA Do-Not-Call rules apply to both wireless and wired phones, and to both voice calls and text messages.  The court also found that the marketer was not protected by the plaintiff having earlier provided written consent to marketing text messages when signing up with ringtone provider Nextones.  By the Ninth Circuit’s interpretation, the plaintiff’s written consent to “receive promotions from Nextone affiliates and brands” did not include consent to third-party marketers who are not selling Nextone’s ringtones or other products.  One suggestion drawn from this decision is that a marketer intending to rely on consumer consent to marketing messages from “affiliates” should document by contract or otherwise, some written authorization and connection between their company and products, and the company which received the consumer’s consent.  (Satterfield v. Simon & Schuster, Inc., Ninth Circuit No. 07-16356, June 19, 2009).  This case also serves as a reminder that while the FCC and the Federal Trade Commission have not established a national Do-Not-Call registry for cell phones, the TCPA provisions on unsolicited, unauthorized marketing calls still apply equally to wireless phones and text messages.

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