A pair of U.S. District Courts recently held that SMS messages sent to a consumer without the consumer’s consent could violate the Telephone Consumer Protection Act – even though the consumers were not charged for the messages.

Both cases were filed as putative class actions by consumers who received “spam” text messages.

In the first case, Sadat Abbas alleged that Selling Source, a company that provides Web site design, hosting, Internet marketing, and e-commerce services, violated the TCPA by sending him “numerous” messages.

In the second case, Victor Lozano claimed that Twentieth Century Fox sent him a text message advertising the animated film Robots when it was released on DVD, as well as other “spam” text ads.

Both defendants moved to dismiss, arguing that the TCPA was not intended to include SMS or text messages, and that the suits failed because the Act requires that consumers pay for the spam messages they receive. Both courts disagreed.

“Congress was just as concerned with consumers’ privacy rights and the nuisances of telemarketing,” as it was with shifting the cost of consumers having to pay for unwanted calls, Judge Joan B. Gottschall wrote in Abbas. “Automated calls invade privacy and pose nuisances regardless of whether the called party is charged for the call.” While the TCPA does not define the term “call,” both courts determined that it applied with equal weight to SMS and text messages. Although such messages did not exist in 1991 when Congress enacted the TCPA, that “does not preclude the application of the latter to the former,” Judge Gottschall wrote.

Judge Amy J. St. Eve agreed in Lozano. “[W]hile text messaging was not a capability in 1991, the plain meaning of the term ‘call’ at that time includes communications by phone, and does not prohibit application of the statute to text messaging. . . . [T]he legislative history of the TCPA reflects that Congress anticipated future technologies when it enacted the statute.”

Why it matters: The decisions make clear the importance of getting express consent from consumers prior to sending SMS messages, even if the messages are free. Marketers who send unsolicited text messages without permission could face litigation