- February 4, 2011
- Posted by: Seth Heyman
- Categories: Featured, Internet Law, Marketing & Advertising Law
Background: Marketing via SMS
Once an innovative marketing technique, directing ads to cell phones via SMS text messaging has steadily been gaining popularity. Texting is fast, cost efficient, and generally produce favorable results. However, because texting is sent to web-enabled devices using a telephone network, it falls under one or more federal telemarketing and anti-spam regulations; namely the Telephone Consumer Protection Act (TCPA), and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM).
The TCPA was originally enacted in 1991 to apply to telemarketing sales calls. Later in 2003, the FCC issued a report interpreting the TCPA to apply to SMS text messages sent using an “automatic telephone dialing system.”* The CAN-SPAM Act became effective on January 1, 2004, and it applies to promotional e-mail messages that are sent to e-mail addresses that are composed of a username, an “@” sign, and a domain name. Because SMS text messages are often sent using addresses that have this format, in a 2004 report, the FCC interpreted the CAN-SPAM Act to also apply to text messages that are sent using this address format.
In a 2009 9th Circuit Court of Appeals case called Satterfield v. Simon & Schuster, the Court cited the FCC’s interpretation in holding that text messages were also subject to the restrictions of the TCPA, which means that marketers cannot send texts to numbers on the Do-Not-Call list.
Regardless of whether you’re dealing with the TCPA or the CAN-SPAM Act the basic rule is the same: you must obtain affirmative consent from the holder of a wireless device before sending promotional SMS text messages to the device.
But the relentless march of communications technology has opened up a new marketing channel: Bluetooth Broadcasting, or “bluecasting.”
As most of us know, Bluetooth is a proprietary open wireless protocol for exchanging data over short distances (using short length radio waves) from fixed and mobile devices, creating personal area networks . The only thing that phone calls, e-mails, SMS, and Bluetooth have in common is that they all communicate information wirelessly. Bluetooth enables anyone armed with a bluecasting device to send marketing messages to any device on the network that incorporates Bluetooth technology, including cell phones, computers, smart phones, iPads, and headsets.
Bluetooth makes no use of the Internet, nor does it use an “automated dialing device” as that term is described in the TCPA, nor does it direct messages to addresses composed of a username, an “@” sign, and a domain name, and thus doesn’t fall under the definition of a commercial e-mail under CAN-SPAM.
Just like communications sent via email, phone, or SMS, Bluetooth is wireless, inexpensive and automatic. The range in which you can establish a Bluetooth zone is is limited to a few hundred yards, but anyone who sets up a few dozen of these devices in a busy airport or a crowded city can transmit ads virtually identical to a text message to tens of thousands of compatible devices.
Bluecasting doesn’t appear to fall under the prohibitions of the TCPA or the CAN-SPAM Act, but many recipients will find bluecasted ads just as intrusive as telemarketing calls or unwanted texts; perhaps even more so, as bluecasting can also reach computers and laptops. As the practice develops and expands, the FCC, the FTC, and the courts will doubtless be called upon to either expand their interpretation of the above-referenced laws, or leave the job to Congress.