People want relevant information at their fingertips. This commonly means obtaining information through mobile devices by several methods, including telephone calls, text messages, in-app messages, and push notifications. Businesses want to reach their customers and other consumers through these communications channels. However, federal and state laws combine to create a patchwork of legal requirements related to mobile communications, and the laws regularly change. This creates an environment laden with legal risk for businesses that communicate with consumers using these methods.
The Telephone Consumer Protection Act (TCPA) is a federal law that regulates, among other things, calls and text messages to cellular telephone numbers. In prior articles and alerts, we have chronicled many of the risks presented by the TCPA and the changing legal landscape as technology evolves.1 With statutory damages of $500-$1,500 per prohibited call or text, many class action lawsuits are brought under this law. However, states are more actively regulating mobile communications in ways that may be stricter than the TCPA or may cover a broader range of communications. Below are recent developments in two states.
New Jersey. Governor Chris Christie announced on January 29, 2015, that he signed New Jersey bill S-1382/A-2933—a bill that permits certain telemarketing calls to mobile numbers. Prior to the bill's passage, virtually all telemarketing calls to mobile numbers were banned.2 This blanket prohibition would have prevented even marketing-related calls requested by consumers. The newly amended law seems to permit telemarketing calls to mobile numbers when the recipients have provided express written consent or when calls are made to existing customers who have not opted out. The New Jersey law now aligns with the TCPA in permitting telemarketing calls to mobile numbers with written consent, but the New Jersey law appears to be more permissive than the TCPA by permitting calls based on an existing customer relationship. Therefore, compliance with New Jersey's law may not meet the TCPA's stricter standards.
The regulation of marketing text messages in New Jersey remains muddled. The FCC has ruled that text messages are "calls" that fall within the scope of the TCPA, and it is unclear whether New Jersey courts would interpret New Jersey's telemarketing statute similarly. The likely enactment of proposed New Jersey bill A-617 should increase clarity. The law would prohibit advertisements sent by text messages unless the sender has obtained the recipient's prior express authorization.
Connecticut. While New Jersey may permit telemarketing to mobile devices in more situations after recent legal changes, Connecticut has recently expanded its telemarketing restrictions to specifically cover "text and media messages."3 The law states that no text or media marketing message may be sent to a mobile number without the prior express written consent from the recipient. A "text or media message" means "a message that contains written, audio, video or photographic content and is sent electronically to a mobile telephone or mobile electronic device telephone number, but does not include electronic mail sent to an electronic mail address." This prohibition appears to cover text messages, and some commenters have suggested that this prohibition could also cover mobile app push notifications. We think a better reading of the statute suggests that only messages sent to a mobile telephone number falls under the statute, which would not include most types of in-app push notifications, which are sent using Internet technology and not telephone numbers. However, the ambiguity creates risk and may cause some businesses to avoid sending useful in-app push notifications given that the written consent requirement may be difficult to meet and the potential fines are significant at $20,000 per violation.
Implications
Marketing techniques are becoming more sophisticated and cost-effective, but making calls and sending messages to customers and consumers on mobile devices should be done with care. Federal and many states' telemarketing laws were drafted before text messages, in-app messages, and push notifications even existed, and the laws can be interpreted in unintended ways when applied to such technology. For example, to date, the Federal Communications Commission (FCC), the TCPA's government enforcement agency, has not formally taken the position that the TCPA applies to in-app messages and push notifications. However, the FCC has ruled that text messages are "calls" that fall within the scope of the TCPA, so it is unclear how the FCC would rule if asked whether other forms of mobile communications also are subject to the statute. Likewise, even when telemarketing laws are updated, as in Connecticut, they can be drafted in a way that leads to uncertainty.
Businesses face risk when making commercial telephone calls or sending commercial messages to mobile devices, and can easily trip over the requirements set by the multitude of federal and state laws that may apply to them. Before implementing mobile marketing programs, businesses would be well-advised to review and update their compliance policies and programs to ensure that they do not run afoul of the ever-changing landscape of federal and state law.
1 Please see recent TCPA-related alerts and articles at https://www.wsgr.com/publications/PDFSearch/eye-on-privacy/Oct2014/index.html#2, https://www.wsgr.com/publications/PDFSearch/eye-on-privacy/Jul2014/index.html#5, https://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert-TCPA-changes.htm, https://www.wsgr.com/publications/PDFSearch/eye-on-privacy/Sep2013/index.html#2, https://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert_class_action.htm, and https://www.wsgr.com/publications/PDFSearch/eye-on-privacy/Jan2013/index.html#4.
2 NJSA 56:8-130.
3 Ct. Gen. Stat. 42-288a.
