William B. Baker writes:
The Telephone Consumer Protection Act (TCPA) (47 U.S.C. §227) prohibits the use of automatic dialing machines to make any calls to a telephone number assigned to a mobile device without “prior express consent” of the called party. This prohibition applies to text message marketing, because the Federal Communications Commission (FCC) and several courts have ruled that a “text message” is a “call.” See 18 FCC Rcd. 14014, 14115 ¶265 (2003); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). Whether a message is “telemarketing” depends on whether there is a direct or implied sales offer. Chesbro v. Best Buy Stores Inc. 697 F.3d 1230, as amended by 705 F.3d 913 (9th Cir. 2012) (holding that a text message warning of the expiration of rewards points, and providing a means to preserve them, was a telemarketing message).
So, what constitutes “prior express consent”?
Read more on Wiley Rein.
The issue he describes and conflicting opinions are relevant to a lawsuit filed in Florida in September that I reported on PHIprivacy.net.