The other night I received this spam text:
Message: Your entry in our drawing WON you a FREE $1,000 Target Giftcard! Enter “617” at www.target.com.tbgz.biz to claim it and we can ship it to you immediately! Details: Sender: (no name) +19018348547 Received: 1:35:05am, July 7, 2012.
What is the law about spam text messages?
47 U.S.C.§ 227 et seq., the Telephone Consumer Protection Act (the “TCPA”) specifically prohibits unsolicited voice and text calls to cell phones. The TCPA provides for a statutory minimum of $500 dollars per unlawful text message.
According to findings by the Federal Communication Commission (“FCC”), the agency Congress vested with authority to issue regulations implementing the TCPA, such calls are prohibited because, as Congress found, automated or prerecorded telephone calls are a greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly and inconvenient. The FCC also recognized that wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991.
Under the TCPA and pursuant to the FCC’s January 2008 Declaratory Ruling, the burden is on Defendant to demonstrate that Plaintiff provided express consent within the meaning of the statute. See FCC Declaratory Ruling 23F.C.C.R. At 565 (¶ 10).16. Text messages are “calls” within the context of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th. Cir. 2009).
Note: This spam text was not sent by Target, and is a scam. Tracking down and recovering damages against the sender would be nearly impossible. If you have received a spam text from a real business, you may be able to recover $500 per unlawful test message.
Deceptive Messages Promised “Free” $1,000 Gift Cards to Major Retailers
Two affiliate-marketing scammers and their company have agreed to settle Federal Trade Commission charges that they sent millions of unwanted text messages to consumers across the U.S. with false promises of $1,000 gift cards to retailers like Best Buy, Target and Walmart.
Under the terms of their settlement with the FTC, Scott A. Dalrymple of Pennsylvania and Robert Jerrold Wence of Texas, who operated a company called Advert Marketing, Inc., will be permanently banned from sending unwanted or unsolicited commercial text messages or assisting others in doing so. In addition, the two will also be prohibited from misrepresenting to consumers whether a product is “free,” whether they have won a prize or been selected for a gift, or other behavior related to the nature of the scam.
Dalrymple, Wence and Advert Marketing were among the defendants named in the FTC’s 2013 enforcement sweep against text message spammers and affiliate marketers who used false promises of free gift cards to draw consumers into websites that asked them to provide credit card information to sign up for trial offers.
The settlement contains a monetary judgment for $4.2 million, which is partially suspended due to the defendants’ inability to pay. Under the terms of the settlement, Dalrymple and Wence will be required to pay $15,000 each to the Commission, and will be required to destroy any consumer data they may have collected while conducting the text message spam operation.
The Commission vote approving the proposed stipulated final judgment was 5-0. The FTC filed the proposed stipulated final judgment in the U.S. District Court for the Southern District of Texas, Houston Division, and the Court entered the stipulated final judgment on June 10, 2014.
NOTE: Stipulated final judgments have the force of law when approved and signed by the District Court judge.
Need a Massachusetts TCPA lawyer? Preston W. Leonard, Esq. accepts TCPA cases; Tel.: (617) 329-1295.