Full question:
We're a marketing/advertising firm. We're currently working with a national pizza chain. We send picture texts to their customers of the latest pizza specials. If the customer does not want to receive updates of pizza specials via text, they can opt-out. Question: are we violating any communication/privacy laws with this method of marketing?
- Category: Advertisement
- Date:
- State: Oregon
Answer:
The answer willl depend on all the circumstances involved, such as the means of making the call and whether the cell phone dialed belongs to someone with an exisitng business relationship, has registered on a do not call list or given permission to receive advertising. Cell phone marketing is covered by state laws, which vary by state, as well as the federal Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act
and Telephone Consumer Protection Act (TCPA). The TCPA provides that it is unlawful to make "any call" for which a party will be charged to a telephone number assigned to a cellular telephone service using "any automatic telephone dialing system" (ATDS) unless the call is for emergency purposes or it is "made with the prior express consent of the called party."
FCC rules prohibit sending unwanted text messages to your wireless phone number if they are sent using an autodialer, or if you have placed that number on the national Do-Not-Call list. Even if you have placed your wireless phone number on the national Do-Not-Call list, the TCPA does not protect you from receiving commercial messages sent to that number if:
-you have given your prior consent to the sender, or;
-you have an established business relationship with the sender.
For further discussion, please see:
http://uscode.house.gov/download/pls/15c103.txt
http://www.fcc.gov/cgb/consumerfacts/canspam.html
http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm
http://newmedialaw.proskauer.com/2009/06/articles/electronic-direct-marketing/ninth-circuit-executes-dictionary-attack-on-telephone-consumer-protection-act/
http://privacylaw.proskauer.com/tags/sms/
http://www.fcc.gov/cgb/policy/TCPA-Rules.pdf
http://www.lctjournal.washington.edu/Vol4/a03Hadjinian.html
http://www.mmaglobal.com/bestpractices.pdf
http://uscode.house.gov/download/pls/15c103.txt
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
