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Text Message from Courts to Mobile Device Advertisers: Keep Advertising

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by Marc R. Jacobs
Bloomberg BNA
May 15, 2015

Marc R. Jacobs' article, "Text Message from Courts to Mobile Device Advertisers: Keep Advertising," was published in Bloomberg BNA on May 15, 2015.

From the article...

Relief is coming in the form of critical decisions by California Federal Courts, which are finally pushing back at the ever-broadening definition of Automatic Telephone Dialing System (ATDS) defined in the Telephone Consumer Protection Act (TCPA) at 47 U.S.C. § 27(a)(1). In this evolving age of mobile advertising, courts are evolving too, both narrowing the scope of what type of text messaging advertising platforms qualify as an ATDS system, and providing much needed guidance to the approach that advertisers can take to insulate themselves from future TCPA liability— and costly TCPA class actions. Most notably, two recent California judicial decisions reflect that courts appear to have finally gotten the SMS message: protect advertisers that introduce ‘‘human curation and intervention’’ into their SMS text messaging platform. 

More than ever, mobile advertising campaigns are enabling advertisers to reach users more rapidly to convey important or requested information. However, with each step forward in improving mobile advertising, costly TCPA litigation pushes advertisers one step back, impacting those companies that are trying to provide a useful service. This was never the intention of the TCPA, as FCC Commissioner Michael O’Rielly conceded on April 1 when speaking before the Association of National Advertisers, where he remarked that the TCPA was enacted to stop companies from ‘‘hounding consumers with incessant or harassing calls,’’ not to stop legitimate companies that ‘‘are trying to provide a useful service.’’ O’Rielly observed that ‘‘[w]e can’t paint all legitimate companies with the brush that every call [or text message] from a private company is a form of harassment.’’