Are Text and Email Advertisements Illegal?
Nov 17, 2012
Papa John’s recently made headlines because it faces a $250 million dollar suit over inundating customers with unwanted text advertisements. The class action members complained that after ordering pizza from Papa John’s they started receiving numerous unsolicited text messages, at times in the middle of the night. The “text blasts” in question were not actually sent from Papa John’s, but rather from a text messaging service they had hired. The group of consumers who received the texts was recently certified as a class by a United States District Court in Seattle and the lawsuit continues to be litigated.
This case raises an important question to consumers: when are text advertisements on my cell phone illegal solicitations? Two laws – the Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act – address spam. The TCPA and certain Federal Communications Commission regulations prohibit many text messages sent to mobile phones using computer software that can send many messages at once. Mass text messages are banned unless (1) you previously gave consent to receive the messages or (2) the message is sent for emergency purposes. This ban applies even if you have not placed your mobile phone number on the national Do-Not-Call list.
Does this include email? Yes! The CAN-SPAM amends the TCPA to include spam email messages. The law bans unwanted email messages sent to your mobile phone if they are “commercial messages.” Commercial messages are those that primarily advertise or promote a commercial product or service. The FCC’s ban does not cover messages that relate to a transaction you already agreed to—for example, messages about an online purchase or notice about an existing account. The FCC’s ban also does not cover non-commercial messages, such as messages about candidates for public office, or email messages that you have forwarded from your computer to your wireless device.
If you are receiving unsolicited advertisements via spam texts or emails, contact our office and speak to one of our consumer protection attorneys. We can help you fix the problem and protect your consumer rights.