A lot of people ask me if there is a CAN-SPAM Act for wireless text messaging. In other words, are there any laws that pertain to sending spam to a cell phone? The answer is yes and no. Confused yet? If you have a strict attorney but would like to to take advantage of this explosive marketing medium, then this article is for you. Let me walk you through how this message type is currently regulated.
There are two types of “text messages” that can be sent to a cell phone:

1. SMTP: Otherwise known as Simple Mail Transfer Protocol, this is the same protocol used when sending an email. Cell phones are able to receive text messages in the form of an email. A lot of carriers still support this. For instance, to send an email text message to a Cingular customer, you would email their 10digitmobilenumber@mobile.mycingular.com

2. SMPP: This is now the preferred method of text messaging, where the message gets routed through a gateway that connects directly to the carrier. This protocol is also known as Short Message Peer-to-Peer.

Our company’s product, Stun!, delivered text messages via SMTP for quite awhile but recently we switched to SMPP for a number of reasons. For one, SMPP is secure and is sent over a VPN (Virtual Private Network) connection with the specific carrier attached to the message recipient. The carrier collects a toll on every message sent, which means that your message has a much higher likelihood of being received correctly than an SMTP-based one, which isn’t routed through the carrier. As a result, the carriers also give you more information as to which numbers are good and bad (a.k.a bounces). Finally, the protocol has two-way capabilities so your subscribers can respond to your message as well as receive them.
Overall, SMPP has a ton of more features and is the right way to go if you are providing marketers with a feature-rich and scalable platform. Now that we’ve covered the differences between the SMS protocols, let’s talk about how these messages are regulated. We’ll be begin with our favorite, the CAN-SPAM Act.

CAN-SPAM Act and Text Messaging
In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act to curb spam. As required by the Act, the Federal Communications Commission (FCC) adopted rules that prohibit sending unwanted commercial e-mail messages to wireless devices without prior permission. This ban took effect in March 2005. The FCC’s ban covered messages sent to cell phones and pagers, if the message used an Internet address that included an Internet domain name (as seen in my Cingular example above). The FCC’s ban did not cover “short messages,” typically sent from one mobile phone to another, that do not use an Internet address (such as an SMPP message).
To help enforce its ban, the FCC required wireless service providers to provide all Internet domain names used to transmit electronic messages to wireless devices. The FCC published this list on its Web site at www.fcc.gov/cgb/policy/DomainNameDownload.html. Senders were prohibited from sending commercial e-mail messages to any Internet domain name on this list without the recipient’s express prior authorization.
In other words, SMTP protocol is pretty heavily regulated when it comes to sending messages to subscribers who did not give their “express prior authorization.” However, the CAN-SPAM Act provided no regulation when it came to SMPP protocol. Still, that doesn’t mean that you are free and clear with SMPP, thanks in large part to a widely interpreted television consumer protection act from 1991.

Telephone Consumer Protection Act:
One of the articles of The Telephone Consumer Protection Act of 1991 (TCPA), includes sending text messages to cell phones using an automatic telephone dialing system. The TCPA prohibits the sending of such messages “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged” 47 U.S.C. 227 (b)(1)(A)(iii). The FCC has made it clear that without the prior express consent of the called party, the TCPA prohibits any call using an automatic telephone dialing system to any wireless telephone number. This prohibition encompasses both voice calls and text calls, including SMS messages sent to wireless phone numbers.
While it might be argued that that the SMPP protocol is not an automatic telephone dialing system, this is still a gray area. Moreover, the underlying directive of the TCPA can be easily extended to include the SMPP protocol, which didn’t exist when the law was initially instated. The intent of the TCPA is to make sure that consumers expressly consent to automated calls or messages sent to wireless devices given that consumers may be charged to receive such calls or messages, which can also be intrusive. Since the act covers such a wide range of devices (at the time, wireless messages were meant for pagers), it is definitely possible that newer wireless technology also falls under these general guidelines. The key is again is the notion “express written consent”, which, in the case of text messaging, means some sort of opt-in proof. Fortunately, Stun! users already have this protection built into the application so meeting these requirements is a very simple matter.

I am sure in the future will see more federally regulated laws that will be more technology specific. Most of the regulations proposed today are being driven by the carriers themselves as well as wireless content and messaging companies. It’s a necessary step to make sure that the government doesn’t outlaw such messaging altogether, which is always possible. Currently, the main organization that manages industry standards is the Mobile Marketing Association (MMA). It is important when selecting a service provider for text messaging that their platform is compliant with industry standards and carrier requirements. Most importantly though, no matter what platform or protocol you are using, make sure that you are obtaining the proper permissions to send someone marketing text messages or you run the risk of being blocked or worse in the future when the FCC will inevitably start to levy fines as they do with the CAN-SPAM Act. Being a good mobile marketing “citizen” is very important these days and can go a long way to making sure you are getting the most out of this exciting and dynamic communication vehicle.
For more information on mobileStorm’s text messaging services, visit mobileStorm’s product overview.

Jared Reitzin

mobileStorm Inc.
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