There is a firestorm over a Virginia marketing firm that allegedly flooded mobile devices with political text messages. But lost in the media coverage is the price some consumers might pay if they lack unlimited texting plans—and whether free speech will keep the practice alive.
The controversy is about a large number of text messages originating from websites tied to a marketing firm called ccAdvertising. On October 30, Washington, D.C., residents received the messages in the aftermath of Hurricane Sandy.
The messages weren’t storm updates: They were short missives attacking Barack Obama's presidential campaign and his stance on same-sex marriage and abortion. And they were showing up on mobile phones apparently at random.
Enough messages were received by reporters in the D.C. area to cause them to look up the owners of the websites and link them to ccAdvertising.
But anyone following the issue of political text messages wouldn’t have been surprised at the tactic, since the firm’s owner said just a week ago such campaigns were just an another example of free speech, and permissible under the Telephone Consumer Protection Act.
Gabriel Joseph told the website Campaigns & Elections on October 25 that he was taking part in an FCC review of the practice, and that any action that banned the mass messaging campaigns was unconstitutional and against the intent of the First Amendment.
Such efforts “take away Americans’ free speech rights that are now protected by current law, FCC regulations and the Constitution of the United States,” Joseph told Campaigns & Elections.
What Joseph calls his constitutional right is labeled an “FCC loophole” by his opponents.
The controversy is about the practice called “email-to-text” messaging. It uses websites, instead of texting services, to send an outgoing email to someone’s cellphone number as a text message. It looks like a text message to the person who receives it, and the FCC doesn’t bar such messages as spam in its current regulations.
The rub, says Campaigns & Elections, is that ccAdvertising claims people who have unlimited texting plans aren’t paying for the messages, so they are permissible under the TCPA.
A written policy statement from the company underscores the practice in an August 2012 press release.
“[W]e conclude that the TCPA did not intend to prohibit autodialer or prerecorded message calls to cellular customers for which the called party is not charged,” it says.
Joseph’s chief opponent, Scott Goodstein of the mobile firm Revolution Messaging, says Joseph’s claim to have technology that differentiates among carriers needs to be proven.
It was Goodstein who filed a complaint with the FCC about the practice back in January.
In an open letter to the FCC this May, Goodstein said, "In order to prevent these unscrupulous consultants from sending these unwanted text messages, which may cost the text message recipient, you must address this issue now."
The FCC has decided to ask for public comments about the issue.
If you don’t think Joseph has a case, he made a direct comparison to Campaigns & Elections.
“Am I worried about taking on a free speech case in this era of Citizens United? No,” he said.
What’s unclear is how a mass messaging company could tell in advance if a consumer has an unlimited texting plan.
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The two major mobile carriers, Verizon and AT&T, offer unlimited texting and seemingly prefer that as a way to offer savings to customers, especially through the use of family calling plans.
Legacy and prepaid Verizon customers can be billed by the text message, depending on the status of their accounts. AT&T also bills by the text message for some prepaid plans.
Other companies with prepaid services have low-cost pricing plans that don’t include unlimited texting.
Also, some cellphone customers could change texting plans and providers yet keep their old phone number. So it remains murky if a company can determine your exact texting payment plan based on your phone number and carrier.
In a September statement, Joseph said his technology allowed ccAdvertising to communicate with mobile customers in a way that complied with the TCPA.
"Over the past decade, mobile carriers have modified consumer plans to include free inbound voice phone calls and text messages. ccAdvertising has developed new technologies and programs that allow us to communicate with voters for free on their mobile phones and comply with the rules set forth by the TCPA of 1991 and the FCC," said Joseph.
The company also said, “Political and non-commercial calls are excluded from Do Not Call laws due to rights protected by free speech.”
The text-message blast on October 30 started a wave of media coverage.
GoDaddy.com has suspended the websites that sent the messages. Nick Fuller, a spokesman for Go Daddy, told NPR his company considered the messages as spam.
"When a customer uses a domain name registered through Go Daddy to participate in activities such as spamming via email or text messaging, instant messages, pop-ups, that's not something that we tolerate," Fuller said.
NPR also emailed Joseph, who said his company “always scrupulously complied with the law.”
The FCC issued a general advisory about text spam in September and will hear more comments this month.
At some point, Joseph and ccAdvertising may get a chance to prove their point to the FCC about its text-sending technology, and the First Amendment. Another round of comments and replies are set for December, before the FCC rules on the issue.
Scott Bomboy is the editor-in-chief of the National Constitution Center.