A New Jersey bill which prohibits unwanted text message advertisements has been sent to the Governor for final consideration. A. 617, which passed unanimously in the Assembly June 26 and in the Senate Sept. 22, if signed into law, would make it illegal to send a text message advertisement to a New Jersey resident if it caused the recipient to incur a telecommunications charge or a usage allocation deduction. Sponsors of the bill noted an increasing number of complaints from consumers regarding unsolicited text messages advertising goods and services. The bill would also bar text message advertisements without prior express authorization from the recipient that includes the number to which the text message may be sent. The bill provides for an exception in the event an advertiser could demonstrate that the unsolicited text message advertisement was an isolated message sent no more than once in a 12-month period. In addition, the bill requires telecommunications companies that sell text messaging services to offer an option allowing customers to block all incoming and outgoing text messages. According to the sponsors' statement, violations would be subject to a maximum penalty of $10,000 for a first offense and $20,000 for a subsequent offense.
The New Jersey bill is following closely behind a similar Connecticut law passed in early July. The Connecticut legislation amended the state's existing telemarketing law to cover unsolicited marketing text and media messages as well as phone calls. The amended law prohibits, among other things, sending unsolicited marketing text messages and unsolicited marketing "media messages" without first obtaining prior express written consent (as defined by the FCC's Rules for Telephone Consumer Protection Act). As revised, the Connecticut law provides for a maximum fine of $20,000 per unsolicited message and a violation of the law constitutes a violation of the Connecticut Unfair Trade Practices Act, which provides for a private right of action.
In addition, California, Rhode Island and Washington all have laws on the books that regulate the ability of companies to send text message advertisements.
On the Federal level, the Telephone Consumer Protection Act also requires prior express written consent when auto-dial technology is used to send promotional messages. Since the various laws applicable to text messages have different scopes of application and consent definitions, companies should continue to monitor text message requirements nationwide and ensure their marketing programs are in line with the law.
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