Washington Journal of Law, Technology & Arts


Gareth S. Lacy


The risk of receiving cell-phone spam—in the form of unsolicited text messages—grows as advertisers increasingly target cell-phone users. The Telephone Consumer Protection Act of 1991 (TCPA) clearly prohibits unsolicited telephone calls made by an automated telephone dialing system (ATDS) without the recipient’s express prior consent. But until the Ninth Circuit’s decision in Satterfield v. Simon & Schuster, it was unclear how TCPA applied to text messages. Simon & Schuster argued their text messages were not “calls” under the TCPA and were not sent by an ATDS. The Ninth Circuit disagreed and held a text message is a “call.” The court also held an ATDS means any equipment with capacity to store or dial random or sequential telephone numbers, regardless of whether such calls were actually made. This sweeping rule arguably applies to any computer. The court also adopted narrow legal definitions of “brand” and “affiliate” that could hinder any business seeking third-party advertisers to send messages on its behalf. This Article explores how Satterfield exposes mobile advertisers to significantly increased liability.

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