• FCC Casts Ugly Shadow Over SMS
  • August 10, 2004
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • The Federal Communications Commission has issued rules that prohibit unsolicited commercial messages from being sent to wireless phones, pagers and personal digital assistance devices.

    The rules, announced by the FCC on Aug. 4, were adopted to implement the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act) passed by Congress last December.

    The FCC action generally prohibits sending commercial messages to email addresses that reference Internet domains associated with wireless messaging services. To help senders identify these addresses, the FCC is requiring wireless service providers to submit their domain names to a publicly available wireless domain names list. The list will not include individual subscriber addresses.

    The FCC's list differs from the national do-not-call list in that wireless users need not opt into the list to avoid unsolicited commercial messages. Senders that wish to transmit commercial messages must obtain express prior authorization from wireless customers, either orally, in writing or electronically.

    The new rules apply to any commercial message sent to an email address provided by a wireless service specifically for delivery to subscribers of wireless devices. They do not cover short message service messages transmitted solely to phone numbers, which are subject to autodialed call rules under the Telephone Consumer Protection Act. The FCC rules also do not cover messages originally sent to personal computers, which are forwarded to mobile devices.

    In a statement summarizing the rules, the FCC noted the Federal Trade Commission will be responsible for determining the criteria for commercial messages and exclusions that qualify as transactional and relationship messages. The FCC statement can be downloaded from http://www.fcc.gov/. At press time, the rules were scheduled to be published in the Federal Register but were not yet publicly available.

    The FCC action follows earlier news regarding cell phone spam. Verizon has filed suit against 51 people alleging they sent millions of unsolicited text ads to the cell phones of Verizon customers. See ABR article "Verizon Targets Cell Phone Spam As FCC Mulls."

    Why This Matters: Any company sending out unsolicited advertisements via the Internet must now check the FCC list to ensure such advertisements are not sent to Internet addresses connected to the domains of wireless service providers. Companies are responsible for making sure vendors comply with these rules.