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If You're Confused, You Should Be: Two Federal Laws Apply to Cell Phone Messages
When it comes to sending promotional messages to wireless devices, such as through e-mail or short message service (“SMS”), there is more than one reason to be confused.
First, there are two different federal laws that apply to messages that end up on wireless devices such as cell phones. The Controlling the Assault of Non-Solicited Pornography and Market Act (the “CAN-SPAM Act”), 15 U.S.C. '7701 et seq. and 18 U.S.C. '1037, applies if the address that is used to send the message consists of a username and a domain name. (Commonly, if the wireless device is a cell phone, the username would be the number of the cell phone and the domain name would be the domain name of the wireless carrier. If the wireless device is of some other type, the address may be formulated differently.) The applicable rule is: If the address has a domain name in it, the CAN-SPAM Act's wireless e-mail regulations apply.
Alternatively, the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. '227 et seq., applies to messages sent to a wireless device where the address used to send the message consists of a number. If the wireless device is a cell phone, that number may be the cell phone number. Many wireless devices that support SMS messaging (including some multifunction cell phones) may also assign another series of digits as an SMS address. In any event, if the address consists of a number, the TCPA's rule applies.
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