This is a PAR I wrote for Regulatory class. The topic is of Mobile Spam, where companies are “junk” texting people’s cell phones, an issue that many can perhaps relate to.
This is an example of how technology has progressed to the point where companies can advertise on people's cell phones, even when we do not want them to.
THE PUBLIC POLICY OF MOBILE SPAM
By
Brandon J Kendall
College of Communication and Information Sciences
Ball State University
INTRODUCTION
Since its existence, cellular or mobile phone have become more beneficial to its users by offering such extra items like music, camera phone, and internet connection just to name a few. Over the years, more and more people have subscribed to cellular service. In 2003 more than 134 million people subscribed to wireless telephone services , and there are159 million cell phones in the US alone.
As the popularity grew with the use of cell phones, so did problems that came with it. The main difference between mobile phones and a land line phone is that on a mobile or cellular phone, you are charged by the number of minutes you use, unlike the flat fee involved with a land line. Jonathan Kay, a sales representative for Verizon Wireless in Raleigh, NC said; “About 80% of out customers go over their minutes at one point or another, and probably 20% go over on a regular basis.” Most of the time, people simply talk to much on the phone, but occasionally this over usage in minutes is a result from unwanted incoming calls, otherwise known as Spam. “Text messaging”, he says, “is now one of the fastest growing features on cellular phones.” Mobile Spam is defined as unsolicited commercial messages, which try to sell something to the user, or ask the user to make a phone call, which may be at a premium-rate service, or destroy or change handset setting, or are simply messages of a commercial nature that are considered threatening, or intruding upon a user's privacy. There are two general categories of mobile spam, incoming calls that flood your phone and a short messaging service (SMS) or text message.
The purpose of this paper is to address the ongoing issues involving mobile phones and “Spam” mail that is unfairly utilizing users’ minutes. In the paper, I will discuss such issues as the history of the cellular phone, the problems that have arose with telemarketing and cell phones, and some solutions that the government and the Federal Communication Committee (FCC) are taking to solve this issue, list any cases related to this topic, and finally come up with my conclusion backing up my opinion that the issue involving mobile spam is one that needs immediate change.
BACKGROUND
In order to understand how critical the mobile spam issue is today, it is important that you understand the history around the mobile world. By understanding how often the mobile world depends on cellular devices, you can start to get an understanding of how big of a nuisance it can be. Since email spam is out of control, preemptive action seems like a good plan. I will provide an in depth explanation of the background of how cell phones developed into what it is today, give a definition of the term spam in regards to mobile devices and give a brief history of the mobile spam that has occurred, I will give a detailed description of any actions that the government and/or the FCC has taken to help control mobile spam, and finally, I will discuss any solutions that might be able to help out with the on growing problem.
Cell Phones
In today’s fast paced environment, you see cell phones almost anywhere. From the fast paced business executive to the high school teenager sitting in class, the cellular phone is almost omnipresent. From being able to listen to music or watch a video, to sending text messages, to VOiP and making calls to almost anywhere in the world, the cell phone has become not a convenient “toy”, but rather a vital necessity. “It keeps me in contact with my office when I need to go out and meet clients” says Jason Kendall, an agent for Shelter Insurance. “I can get any information I need, no matter where I am at.” Although the cell phone is small and convenient now, it wasn’t always that way.
The basic concept of cell phones began in 1947, when researchers looked at crude mobile (car) phones and realized that by using small cells (range of service area) with frequency reuse they could increase the traffic capacity of mobile phones substantially. The FCC limited the bandwidth allocation that was available for use. At first, the cell phone was little more than a two way portable radio. But it wasn’t long for people to see the befits of such a device, thus improving technology at the same time. The FCC reconsidered its position in 1968, stating "If the technology to build a better mobile service works, we will increase the frequencies allocation, freeing the airwaves for more mobile phones." Bell Labs and Motorola were the two companies dead lock in a race to see who could create the first cellular device. Martin Cooper was the head scientist working for Motorola. Joel Engle worked for Bell Labs. Motorola wanted to prove that they could keep up with Bell Labs. “We needed to prove that a company other than Bell could participate in this new industry, and our people did it.” Finally in 1973, Martin Cooper became the first person to invent the first modern portable handset. Cooper made the first call on a portable cell phone to his rival, Joel Engel.
It wasn’t until 1984 that cell phones were mass marketed to the general public, and these new wireless gadgets were bulky, expensive to operate compared to nowadays, and back then, seemed like just another toy on the wish list of those who had money. The cellular phone has come along way since 1973. The cell phone no longer costs $4000 to buy , and it can reach more than its original 30 subscribers. Over the years, cells phones have become smaller, lighter, and more user friendly. But unfortunately, as the popularity grew with cell phones, so did the idea for businesses to advertise their productions via these cell phones. Being one of the fastest growing industries, telemarketers soon fixed their focus on this multi-million customer based system, and thus came the birth of Mobile Spam.
MOBILE SPAM
Definition of Mobile Spam
The problem the government has had in the past of stopping mobile spam is the fact that there is no concrete definition of the term. According to the Telecommunications Illustrated Dictionary, the term Spam is defined as: a term widely used on the Internet to describe annoying, unsolicited, irrelevant, illegal, or worthless communications, usually in the form of email. Although email spam can be a nuisance for someone checking his/her email, this is not the primary focus that needs to be addressed here. Telemarketers have proven to be much more of a problem with a cell phone customer. Telemarketing is a plan, program, or campaign which is conducted to induce purchases of goods or services, or a charitable contribution, donation, or gift of money or any other thing of value, by use of one or more telephones and which involves more than one interstate telephone call. Similar, Congress finds the following about Telemarketing:
(1) Telemarketing differs from other sales activities in that it can be carried out by sellers across State lines without direct contact with the consumer. Telemarketers also can be very mobile, easily moving from State to State. (2) Interstate telemarketing fraud has become a problem of such magnitude that the resources of the Federal Trade Commission are not sufficient to ensure adequate consumer protection from such fraud. (3) Consumers and others are estimated to lose $40 billion a year in telemarketing fraud. (4) Consumers are victimized by other forms of telemarketing deception and abuse. (5) Consequently, Congress should enact legislation that will offer consumers necessary protection from telemarketing deception and abuse.
People who own a cellular phone buys a plan based on the number of minutes used each month. Therefore it is important for the customer to be able to limit the amount on incoming calls.
Telemarketing can occur generally in two different forms, via phone messages that use up customers minutes and via a SMS, or text message. SMS, or Short Message Service, is a service used for sending messages of up to 160 characters (224 characters if using a 5-bit mode) to mobile phones that use Global System for Mobile communication. SMS messages are transmitted within the same cell. Text messages are small packets of data that are easy to send, and because the companies transmit them on high-priority channels whose main purpose is to set up cell phone calls, they are reliable as well. Text messages can also be sent to digital phones from a Web site equipped with PC Link or from one digital phone to another. This is a big reason telemarketers can send out vast amounts of spam to text messages. The problem is becoming a big enough issue that it has caught Congress’s attention. Michael Powell noted; “Spam has become the plague of the information age. It truly frustrates, if not destroys, the powerful experience that some of the new technologies can provide.” According to Will Sturgeon, “Spam on mobile devices is becoming a real problem. Over 2/3 of mobile users have gotten an unsolicited SMS, however, unlike email a SMS has a cost to it- usually a per message fee. It’s not nearly as cheap to send out 1 million texts as it is to send out 1 million email messages.” Weather a customer sends or receives a text message; they will still get charged money. According to the Chicago Sun, in 2005 the costs of text messages were the following: Cingular- 10 cents each, 50 for $2.99, Sprint- 10 cents each, 100 messages $5.00, Verizon Wireless- Incoming 2 cents, outgoing 10 cents, 100 for $2.99, US Cellular 10 cents, 50 for $2.95, and T Mobile- 5 cents, 400 for $4.99. So, if a company sends an advertisement through a text message, the customer gets charged for that. It is not only annoying, but costs money as well. Verizon Wireless subscribers sent out 2.3 billion text messages, and Cingular, 1.4 billion in 2004. Granted, most of these are not spam, but the chances of receiving a spam message are still great.
As mentioned above, text messages are not the only form of Spam affecting mobile users. An unsolicited cell phone message is another annoying tool that telemarketers are using to scam customers. “Panicked cell phone users may rush to retrieve the message, thinking they’ve missed an important call. Instead, they eat up valuable airtime minutes listening to an unsolicited sales pitch.” With over 2/3 of the people receiving mobile spam in one way or another, most of us are able to relate to the annoyance it can bring. Now, let’s take a look at some of the actions that have been made to help prevent mobile spam.
Actions by the FCC and Congress to help prevent Mobile Spam
It wasn’t long after Martin Cooper made his call to Joel Engle that companies realized the ability for mass marketing on a technology that was created right in front of their nose. At first, people didn’t mind the occasional telemarketing call dial into their cell phone. They were still just happy to be able to marvel at such a device. Slowly, one call became two, then three and so on. As more and more calls were incoming on the customers phone, at their expense none the less, the more people grew annoyed at this invasion of privacy. Soon it started to appear in the form of SMS or text messages as well. There was a need for change.
The change did not happen over night, in fact, it has not been completely solved yet. Robert Haskins with Shentel says, “The lack of a centralized, open source messaging server as there is in the email space (e.g Sendmail) makes addressing the problem of non-email spam much more difficult.” Since this is a newer platform that this spam is addressed on, it had been proven to be more difficult to stop. There have been many attempts through the Federal Communications Committee and the government to stop mobile spam.
The problem with mobile spam originated in Japan. Back in 2001, a dating service company sent out 900,000 unsolicited messages to users of a region based I-mode wireless service. In Singapore, a company called mTouche gave out cell phone numbers to a Chinese client. That client then sent out unsolicited SMS messages to 300,000 cell phone users and then billed them $1 each. It was instances like these that forced governments to step in and take action. In Singapore they have The Direct Marketing Association of Singapore (DMAS). The United Kingdom has The Independent Committee for the Supervision of Standards of Telephone Information Services (ICSTIS). The US has two organizations designed to fight mobile spam. They are The Wireless Advertising Association (WAA) and the Network Advertising Initiative (NAI). The WAA set fourth guidelines on Privacy and Spam. They are as follows: (1) customers should approve or give confirmed opt-in to members before the members send wireless push advertising; (2) members should not transfer subscriber data to third parties without authorization; and (3) members should not forge the identity or message originators, send chain letters, make “fake” voice calls, or mislead subscribers about content. In government, it was decided that:
(1) The Commission shall prescribe rules prohibiting deceptive telemarketing acts or practices and other abusive telemarketing acts or practices. (2) The Commission shall include in such rules respecting deceptive telemarketing acts or practices a definition of deceptive telemarketing acts or practices which shall include fraudulent charitable solicitations, and which may include acts or practices of entities or individuals that assist or facilitate deceptive telemarketing, including credit card laundering. (3) The Commission shall include in such rules respecting other abusive telemarketing acts or practices—(A) a requirement that telemarketers may not undertake a pattern of unsolicited telephone calls which the reasonable consumer would consider coercive or abusive of such consumer’s right to privacy, (B) restrictions on the hours of the day and night when unsolicited telephone calls can be made to consumers, (C) a requirement that any person engaged in telemarketing for the sale of goods or services shall promptly and clearly disclose to the person receiving the call that the purpose of the call is to sell goods or services and make such other disclosures as the Commission deems appropriate, including the nature and price of the goods and services; and (D) a requirement that any person engaged in telemarketing for the solicitation of charitable contributions, donations, or gifts of money or any other thing of value, shall promptly and clearly disclose to the person receiving the call that the purpose of the call is to solicit charitable contributions, donations, or gifts, and make such other disclosures as the Commission considers appropriate, including the name and mailing address of the charitable organization on behalf of which the solicitation is made.
With the help of the government intervening, it made it more difficult for telemarketers to plague mobile customers with mobile spam. But this help from the government was a long process. Listed below are the actions that took place to try and prevent mobile spam. I will list them in chronological order.
Telephone Consumer Protection Act of 1991
In 1991, Congress was getting bombarded with complaints from its citizens about the growing number of unsolicited phone calls by telemarketers. People were complaining that these advertisements were an annoyance. Not only was there a complaint about advertisements, but they were automated and prerecorded messages. People demanded a change. In response of their complaints, the FCC adopted rules that require anyone making a telephone solicitation call to your home to provide his or her name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity can be contacted. Furthermore, the original rules also prohibited telephone solicitation calls to your home before 8 am or after 9 pm, and require telemarketers to comply with any do-not-call request you make directly to the caller during a solicitation call. The problem with the Telephone Consumer Protection Act, or “junk fax” law was that it only banned automated dialers from “calling” phone numbers, which did not cover SMS messages that were transmitted digitally. Four years later, another act was passed that would help in some areas that the act of 1991 did not address.
Telemarketing Sales Rules of 1995
The Telemarketing Sales Rule of 1995 succeeded in doing two things. First, it defined telemarketing as a plan, program, or campaign which is conducted to induce purchases of goods or services, or a charitable contribution, donation, or gift of money or any other thing of value, by use of one or more telephones and which involves more than one interstate telephone call. The Rule also set fourth rules on what Telemarketers can and cannot do. For outbound calls, the following prompt must be available; (1) The seller’s identity, (2) That the purpose of the call is to sell; (3) The nature of the goods or services offered; and (4) That no payment or purchase is necessary to win if a prize promotion is offered. One year later the FCC amended the rule stating:
(1) It is illegal for a telemarketer to call you if you have asked not to be called. (2) Calling times are restricted to the hours between 8 a.m. and 9 p.m. (3) Telemarketers must tell you it's a sales call, the name of the seller, and what they are selling before they make their pitch. If it's a prize promotion, they must tell you that no purchase or payment is necessary to enter or win. (4) It's illegal for telemarketers to misrepresent any information; any facts about their goods or services; earnings potential, profitability, risk, or liquidity of an investment; or the nature of a prize in a prize-promotion scheme. (5) Before you pay, telemarketers must tell you the total cost of the goods and any restrictions on getting or using them; or that a sale is final or non-refundable. (6) It's illegal for a telemarketer to withdraw money from your checking account without your express, verifiable authorization. (7) Telemarketers cannot lie to get you to pay, no matter what method of payment you use. (8) You do not have to pay for credit repair, recovery room, or advance-fee loan/credit services until these services have been delivered. (9) It's illegal to help deceptive telemarketers if you know that they are breaking the law. (10) Your state law enforcement officers now have the power to prosecute fraudulent telemarketers who operate across state lines.
With this law in effect, it helped protect customers from unwillingly be charged for funds
they are not entitled to do so. In 2003, there were a series of Acts that would help out
customers against mobile spam.
Wireless Telephone Spam Protection Act of 2003
The Wireless Telephone Spam Protection Act was passed to amend section 227 of the Communications Act of 1934, to prohibit the use of the text, graphic, or image messaging systems of wireless telephone systems to transmit unsolicited commercial messages. The Congress found that:
(1) it is estimated that more than 134,000,000 people in the United States currently subscribe to wireless telephone service and that the percentage of people in the United States who subscribe to such a service will increase in the future; (2) advances in technology have made it increasingly easy to transmit information, including messages in text, graphics, and images, to wireless telephones; (3) the privacy of personal information and the protection of one's personal time is an issue of increasing concern to people throughout the United States; (4) prudent consumer protections must keep pace with advances in communications technology to ensure protection of privacy and personal time; and (5) to protect the privacy of wireless telephone subscribers, transmission of unsolicited commercial messages on wireless telephone text, graphic, and image messaging systems should be prohibited.
Because of such findings, Congress felt there was a need for an immediate change in order to stop such a large problem. Congress took the original bill, and added an amendment.
DEFINITION- Section 227(a) of the Communications Act of 1934 (47 U.S.C. 227(a)) is amended (1) by redesignating paragraphs (2), (3), and (4) as paragraphs (3), (4), and (5), respectively; and (2) by inserting after paragraph (1) the following new paragraph: '(2) The term 'covered messaging system' means a messaging system capable of providing text, graphic, or image messages (including a short message service and systems using the wireless application protocol) that A) is provided as part of a commercial mobile service (as such term is defined in section 332(d)); and B) provides access to the text, graphic, or image messages on the same handset used to access voice messages.
In short, Congress took the current bill that was in law, and added or amended it to include any text, graphic, or image messaging system that is provided as part of a commercial mobile service after electronic devices. This, in turn, included mobile devices, such as cell phones, to be included.
The National Do-Not-Call List
The National Do-Not-Call List was created as a way to protect individuals as a way to not receive annoying telephone solicitation calls at home. A “telephone solicitation” is defined by DATCP as an unsolicited telephone call that encourages the consumer to purchase property, goods or services, or a call that is part of a plan or scheme to encourage the consumer to buy property, goods or services. These “telephone solicitation” calls include not only traditional telemarketing activity but also the telephone calls a Realtor makes to his or her clients or customers to remind them to order the septic test required by the offer contingency or to obtain an insurance binder for closing. Michael Powell strongly suggested to mobile-phone customers that if they do not want to receive telemarketing calls that they sign up for the Do-Not-Call List. Under this law, once you put your home phone number, including any personal wireless phone numbers, on the national Do-Not-Call list, callers are prohibited from making telephone solicitations to those numbers. It is the responsibility of the business to check the list every 31 days. You are not protected, however, by calls or messages placed with your express prior permission, by or on behalf of a tax-exempt non profit organization, or from a person or organization with which you have an established business relationship (EBR).
Auto-dialers
Along with solicitation calls, the FCC provided rules against auto-dialers. An auto-dialer or dialer is a piece of software installed on your machine that will dial out from your computer, via the modem, to add charges to your phone bill without your permission. The rules set forth by the FCC regarding Auto-Dialers are as follows; Auto dialers and any artificial or prerecorded voice messages may not be used to contact numbers assigned to: any emergency telephone line; the telephone line of any guest or patient room at a hospital, health care facility, home for the elderly, or similar establishment; a paging service, wireless phone service (including both voice calls and text messages), or other commercial mobile radio service; or any other service for which the person being called would be charged for the call. Dane Snowden warned telemarketers on November 24, 2003 that they must make arrangements to obtain mobile-phone numbers because it is illegal to use auto dialers to call wireless phones. He noted in a letter, “A telemarketer may make appropriate arrangements with a user to obtain the data in a manner that best meets its business needs. Consistent with the approach adopted by the commission to rely on the telemarketing industry to select solutions that best fit telemarketers’ needs, I anticipate that you will review the Nov. 21 letter from NeuStar, Inc. and the options it presents to make available the information required to determine that a wire-line number has been ported to a wireless service.”
CAN-SPAM ACT of 2003-
The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or the CAN-SPAM Act was made in affect on March 11, 2004. Its main purpose was to determine an electronic mail message’s primary purpose, in hopes that customers would not be tricked into a solicitation or market scam. Soon it was determined this was not good enough, and on May of 2005 it made the following provisions:
(1) Defining the term "person," a term used repeatedly throughout the Act but not defined there; (2) modifying the definition of "sender" to make it easier to determine which of multiple parties advertising in a single e-mail message will be responsible for complying with the Act's "opt-out" requirements; (3) clarifying that Post Office boxes and private mailboxes established pursuant to United States Postal Service regulations constitute "valid physical postal addresses" within the meaning of the Act; (4) shortening from 10 days to 3 the time a sender may take before honoring a recipient's opt-out request; and (5) clarifying that to submit a valid opt-out request, a recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page.
The CAN-SPAM act bans messages sent to cell phones and pagers, if the message uses an Internet address that includes an Internet domain name (usually the part of the address after the individual or electronic mailbox name and the “@” symbol). What spammers are doing is sending out a message via an online domain and sending it to a large list of numbers. These numbers usually end up being a cell phone number and the message is sent in the form of a text message. In February of 2005, the FCC published a list of domains that spammers are using as a carrier. Cingular.com, Messaging.nextel.com, messaging.sprintpcs.com, attmobility.com, and Alltel.com were some that made the list. The CAN-SPAM Act was modeled closely to the Do Not Call Registry. Because of this reason, the Federal Trade Commission has the authority to enforce new anti-spam guidelines. As such, the FTC is in charge of creating a Do-Not-Spam Registry.
The CAN-SPAM Act combined with the Telephone Consumer Protection Act of 1991 allowed for the FCC to come up with a strict guideline for rules that would apply to Telemarketers regarding mobile spam. The Commission adopted a general prohibition on sending commercial messages to any address referencing an Internet domain associated with wireless subscriber messaging services. Between new rules implementing the CAN-SPAM Act, and the existing rules concerning messages sent to wireless telephone numbers under the Telephone Consumer Protection Act, the Commission has taken the following actions:
(1) Interpreted the scope of material covered under the definition of mobile service commercial messages (MSCMs) in the CAN-SPAM Act to include any commercial message sent to an electronic mail address provided by a CMRS provider specifically for delivery to the subscribers wireless device. The Commission found that Short Message Service messages transmitted solely to phone numbers (as opposed to those sent to addresses with references to Internet domains) are not covered by these protections, but all autodialed calls are already covered by the TCPA. (2) Provided guidance on what falls within the definition of commercial, while emphasizing that the Federal Trade Commission is ultimately responsible for determining the criteria for commercial and what are excluded as "transactional or relationship" messages. (3) Prohibited the sending of MSCMs unless the individual addressee has given the sender express prior authorization. This authorization may be given orally, in paper or electronically. (4) Stated it will create a publicly available FCC wireless domain names list containing the domain names used for mobile service messaging. This will enable senders of commercial mail to determine which addresses, containing those domain names, are directed at mobile services, and (5) Required all CMRS providers to supply the Commission with names of all the Internet domains on which they offer mobile service messaging service. The rule prohibits sending any commercial messages to addresses that contain domain names that have been listed on the official list for at least 30 days or at any time prior to 30 days if the sender otherwise knows that the message is addressed to a wireless device.
Recap
There have been many actions taken by the government that has helped to protect people from mobile spam. It is unfair to the people that receive an unsolicited call or text message that turns out to be junk or spam. It is even worse when these people are getting charged for the spam. Here is a brief recap of the cases and how they have helped protect people from being attacked from spam. The Telephone Consumer Protection Act of 1991 forced any telemarketer to identify upfront who they were and the purpose of their telephone call. This gave the user the option to either hang up or talk to them upfront. The Wireless Telephone Spam Protection Act of 2003 was actually an amendment of the Communications Act of 1934. It made it illegal for companies to send a text or graphic message to a wireless phone for means of commercial message. The CAN-SPAM Act helped to reduce companies from sending out “spam” to cell phones. They would do this by using an internet data base, and send out an email message to millions of people. Some of these people happened to be cell phone numbers. It also made the advertisers give the customer the right to not receive calls again. The National-Do-Not-Call List was created as a way to be blocked from receiving Telemarketing calls. If you were put on the list, the telemarketer had 30 days to stop calling. The government said it was the responsibility of the telemarketer to access this list every month. These provisions have set a good stepping stone if the fight against mobile spam. There have been a few cases involving spam and mobile spam. In the case of Rossario v. Paddock Publications, Paddock Publications was charged with sending unsolicited fax advertisements. Again in the case of Kaufman v. ACS Systems, the issue on mobile spam was brought up via fax. These cases fought for the rights of those oppressed by mobile spam, but it wasn’t until Joffe v. Acacia that the nation truly turned its eyes on the issue.
Court Cases
Joffe v. Acacia
Perhaps the most noted case, and most relevant case regarding mobile spam was Joffe v. Acacia Mortgage Corporation. Rodney Joffe was CEO of Whitehat.com, a company that offers list, data hygiene, and interactive services. Joffe sued Acacia Mortgage Corporation for sending, on two different occasions, unsolicited advertisements, in the form of text messages to Joffe’s cellular phone. On January 6, 2001, the text said; “Carla, Greenspam lowered rates, 30 yr mortgage=6.875%. Still interested? 602-944-7200 or www.AcaciaNational.com[.]” He received another text on March 21, 2001 stating; “Mr. Simms, Federal Reserve just cut rates by ½ %. Still want new mortgage? 480-897-8944.” On both cases, Joffe was being charged for an incoming text with junk mail or spam he did not want. Acacia claimed that an auto-dialer, at this point and time, did not apply to text messages, therefore they were not at fault, but Joffe claimed that the calls made by Acacia violated the Telephone Consumer Protection Act of 1991. The courts found the following ruling:
By using an e-mail address composed primarily of a telephone number, [Acacia] initiated a telephone message to a telephone number assigned to a cellular telephone service. By this method, [Acacia] initiated a demand to make a connection to [Joffe's] cellular telephone for the purpose of delivering a message by telephone encouraging [***5] the purchase of services or investment in a product offered by [Acacia]. By doing advertising in this manner, [Acacia] shifted some of the cost of its advertising to those receiving the telephone calls. The Court is of the opinion that such conduct violates the [TCPA] Telephone Consumer Protection Act of 1991.
Furthermore, the court also stated;
Such conduct constitutes a prohibited use of an "automatic dialing system" to make a "call" to a "telephone number assigned to a cellular telephone service." 47 U.S.C. §227 (b) (1) (A) (iii). The Court further held that the TCPA was neither preempted by the CAN-SPAM Act's regulation of such conduct, nor an unconstitutional regulation of speech that violated the First Amendment.
Thus, based off of the Joffe case, the courts determined that it was unlawful for any company to send a text message (even if they send it in the form of an email), for the purpose of advertising, using an auto dialer to anyone using a cellular phone that would charge the customer with a fee.
CONCLUSION
The FCC and the government have acted together to try to ease the current plague of mobile spam that is affecting America. They have done this through a series of a laws and cases fighting mobile spam. I feel more still needs to be done. It is an injustice when the citizens of a nation are forced to split the bill of an advertisement, especially when they did not ask for it in the first place. Although these actions have greatly helped in reducing spam, it has not completely stopped it.
It is necessary to continue to find newer and better ways to stop the ever so clever spamming companies from this injustice. “One of the most common scams is when a boy or girl receives a carefully worded SMS message such as ‘Where have you been, I have tried to contact you. It’s been a long time but let’s get together soon’- Julie”, says Reg Robertson. What they don’t know is every time they reply to the text, it costs $4.
There are some things we can do to help protect ourselves from being attacked. Michael Powell says; “I strongly suggest to mobile phone customers that if they do not want to receive telemarketing calls that they sign up for the Do-Not-Call List”. Also, if you have been a victim of mobile spam, there are certain actions you can take. First, you may file a complaint if you receive: (1) an unwanted commercial message sent to a wireless device; or (2) a telephone solicitation made to a wireless device for which the phone number is registered on the national Do-Not-Call list; or (3) any autodialed text message on your wireless device, or an unwanted commercial message to a non-wireless device from a telecommunications company or advertising a telecommunications company's products or services. If any of the above has happened then you are at liberty to file a claim with the FCC. It may not be possible to completely stop mobile spam right now, but if you take the appropriate measure, in accordance with the laws enforced by the government and FCC, then you can help to reduce the amount of spam you get.
DEFINATIONS
Anti-Spam Technology- This is programs that a cellular provider can install the help prevent their customers prevent wireless spam. The providers can utilize filters that can block out mass amounts of messages from coming from one source. It can also offer their customers the ability to personalize their filters based on keywords, which can block out messages that contain certain words.
Auto-dialers or dialers- An auto-dialer or dialer is a piece of software installed on your machine that will dial out from your computer, via the modem, to add charges to your phone bill without your permission.
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act of 2003) - Under the law, individuals should not be misled by advertisements and should have the right to decline future advertisements. The requirements set forth in the bill include: (1) senders of commercial electronic mail must not intentionally provide false or misleading header information; (2) senders of commercial electronic mail must not mislead recipients as to the content of the message, and (3) recipients must be able to oup-out.
DMAS- Direct Marketing Association of Singapore- organization to fight off the problems of spam. Located in Singapore.
Do Not Spam Registry- The Do Not Spam Registry was similar to the Do Not Call list, but regarded specifically text messages instead of cell phone calls. It was highly criticized when it first came out.
National Do-Not-Call List- The National Do-Not-Call List was created as a way to protect individuals as a way to not receive annoy telephone solicitation calls at home. Once on this list, it made it illegal for telemarketers to call people on this list.
ICSTIS- The Independent Committee for the Supervision of Standards of Telephone Information Services. This is an organization designed to fight off spam located in the United Kingdom.
NAI- Network Advertising initiative. This is one of the Committee’s in the US to help fight spam.
Short Messaging Service (SMS)- Commonly known as a text message, SMS has become a very popular add on with cell phones. SMS is a feature available in most modern digital phones, that lets users receive and send short text messages (from 150 to 160 characters) to other cell phones.
Telemarketing- a plan, program, or campaign which is conducted to induce purchases of goods or services, or a charitable contribution, donation, or gift of money or any other thing of value, by use of one or more telephones and which involves more than one interstate telephone call.
Telephone Consumer Protection Act of 1991- required anyone making a telephone solicitation call to your home to provide his or her name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity can be contacted. This was the first of many acts to come involving mobile spam.
Telephone Solicitation- an unsolicited telephone call that encourages the consumer to purchase property, goods or services, or a call that is part of a plan or scheme to encourage the consumer to buy property, goods or services.
WAA- Wireless Advertising Association. This is one of the Committee’s in the US to help fight spam.
Wireless Telephone Spam Protection Act (H.R. 122)- Originally introduced in 2001, it was later reintroduced in 2003 so that it would relate to wireless spam. It made it illegal for companies to send a text, graphic, or image messaging to a wireless phone for the purpose of a commercial message.
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