Recent State Enactments Regulating Unsolicited Text Messaging Could Have Broad Implications for Companies that Communicate to Customers’ Mobile Devices
Two states – New Jersey and Connecticut – have recently imposed additional legal conditions on electronic messaging to mobile devices. In a few ways, these laws may raise the bar for companies on compliance when sending text messages and possibly other forms of messaging to mobile devices.
On October 27, 2015, New Jersey Governor Chris Christie signed into law A-617, a bill prohibiting sending text message advertisements to New Jersey residents without the recipient’s prior permission, if the recipient could incur a charge or a usage allocation deduction for receiving the message. Prior permission must be express authorization from the intended recipient specifying the number to which the message may be sent, and may be revoked at any time. Violators may be penalized by a civil penalty imposed by the New Jersey Attorney General of up to $500 for the first offense and $1,000 each time after. The law also requires telecommunications companies to allow customers to block all incoming and outgoing text messages that result in charges or usage allocation deductions. The New Jersey law will become effective November 2016.
In May 2014, Connecticut passed S.B. 209, a law covering unsolicited autodialed pre-recorded sales calls, marketing text messages and marketing media messages. Connecticut’s law is very similar to New Jersey’s law, except that it only applies to consumer messaging and contains some helpful exceptions to certain of its restrictions. The Connecticut law also imposes higher penalties for violations than the New Jersey law. The maximum fine per violation is $20,000. Additionally, a violation of S.B. 209 is considered a violation of the Connecticut Unfair Trade Practices Act, which provides for a private right of action. The Connecticut law became effective October 2014.
New Jersey’s and Connecticut’s laws add to the framework of state and federal laws regulating unsolicited text message advertisements. State laws requiring consent to send text messages exist in some states, and the federal Telephone Consumer Protection Act (TCPA) also requires the sending party to obtain the account holder’s prior express consent before sending a text message. If the text is promotional in nature, the consent requirements prescribed by the federal law are stronger.
Although similar to the above laws, New Jersey’s and Connecticut’s laws define text messages more broadly. New Jersey’s law defines “text messaging” as “the wireless transmission of text, images or a combination of text and images by means of a cellular telephone, a paging or messaging service, a personal digital assistant or any other electronic communications device.” In Connecticut’s law, “text or media message” is defined as “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.”
Although legislative history does not indicate that legislators intended for these laws to cover a broader scope of electronic messages beyond traditional SMS and MMS messages sent to phone numbers, creative plaintiffs lawyers actively seek out laws with unintentionally broad definitions that are not generally complied with by mainstream companies consistent with their broadest interpretations.