Marketing: Spam

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Reflecting the public’s distaste for unsolicited email, or “spam,” recent years have seen a number of “anti-spam” lawsuits filed alleging a variety of federal and state law claims. In addition, anti-spam legislation has been enacted in 38 states, with many more bills pending. This new legislation presents a patchwork of prohibitions and requirements, including prohibiting forged headers, prohibiting misleading or falsified point of origin and transmission path information, and requiring an opt-out mechanism as well as specific labeling in the subject line so that the email may be readily identified by the recipient as advertising.

Legislation

State Legislation

At present, thirty-eight states have laws regulating the transmission of unsolicited email messages. Generally, these state statutes define spam as unsolicited bulk or commercial advertising messages. None of the existing statutes contains a flat ban on the sending of emails. Rather, the statutes are generally limited in application to commercial and/or unsolicited messages and are designed to prohibit specific content or conduct.

Most states enacting spam legislation over the past five years have passed spam fraud bills to outlaw false heading and routing information, and other false or misleading information. An increasing number of states have passed email-labeling bills which affirmatively require inclusion of specific subject-line information to identify the message as advertising (e.g., “ADV:” for general advertising or “ADV:ADLT” for email containing sexually explicit material). In addition, many statutes require unsolicited email to contain an opt-out notice and process by which users can readily opt-out of receiving future messages.

Many state statutes provide complete or partial exceptions from their requirements where the parties have an existing business relationship or where the recipient has consented to receiving the email. Importantly, however, the definition of “consent” varies from state to state. While some states require an express request from the recipient to establish the requisite level of consent, many state statutes do not define “consent,” or imply a consent exception by prohibiting only “unsolicited” email, thus leaving ambiguous whether consent must be express (e.g., opt-in) or whether opt-out methods would suffice.

California has passed the most restrictive spam legislation in the nation. The act, in stark contrast to all existing statutes, eliminates the current format and content requirements in California spam laws, and instead, completely prohibits all unsolicited email sent either from or to California, unless the advertiser has: (1) the recipient’s direct consent, or (2) a pre-existing or current business relationship with the recipient. Cal. Bus. & Prof. Code § 17529.1(o)(1)-(2).

Federal Legislation

In December 2003, Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or “CAN-SPAM” Act of 2003, that is similar to many states’ anti-spam statutes. 15 U.S.C. §§ 7701-7710. Among its requirements, the CAN-SPAM Act requires unsolicited commercial email to include “clear and conspicuous identification that the message is an advertisement or solicitation,” a functioning return address or a link recipients can use to opt out of future emails that stays working at least 30 days after the original mailing, and a valid physical postal address. 15 U.S.C. § 7704(a)(5)(A)(i)-(iii). The Act also defines it as an aggravating factor to send commercial email to addresses that were gathered via automated methods or gathered from sources with published anti-spam policies, and prohibits false or misleading transmission information. 15 U.S.C. § 7704(b). Notably, this legislation includes penalties that may be imposed for violation of its provisions, including statutory damages of $250 per violation up to $2,000,000, which amount may be tripled if the court finds the violation to be willful or includes one of the aggravating factors. 15 U.S.C. § 7706(f)(3)(A)-(C). The legislation allows the FTC, as well as states’ attorneys general and Internet service providers, to bring civil actions against violators of the Act, by which they may recover statutory damages, as well as attorney’s fees and costs. 15 U.S.C. § 7706(f).

Representatives Burr and Tauzin also introduced the Reduction in Distribution of Spam Act of 2003. The Act would require commercial email to include “clear and conspicuous identification that the message is an advertisement,” a functioning return address or a link recipients can use to opt out of future emails that stays working at least 30 days after the original mailing, and a valid physical postal address. The Act prohibits sending any commercial email to a recipient for three years following an opt-out request, without the recipient’s consent. The Act also prohibits false or misleading transmission information and deceptive subject lines, and prohibits using automated means to obtain electronic mail addresses from a Web site without authorization. The FTC has enforcement authority under the Act. In addition, state attorney generals may bring actions on behalf of state residents, and Internet service providers may bring actions against businesses that send commercial email in violation of the Act across their networks. Violators may be liable for actual damages, or $10 per email up to $500,000, and up to $1.5 million if the sender knowingly violated the Act. Notably, the Act prohibits the class action mechanism for plaintiffs for violations of its form requirements.

Constitutional Considerations

  1. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996). Plaintiff advertising agency sent unsolicited email advertising to AOL subscribers. When subscribers complained, AOL blocked messages originating from plaintiff Cyber Promotions. Cyber Promotions sued, seeking a ruling that it had a First Amendment right to send its email advertisements through the Internet without AOL’s interference. The trial court rejected Cyber Promotions’ argument, reasoning that the Internet was not run by the government, AOL did not perform a traditional governmental function, and Cyber Promotions had other available channels in which to distribute its material.
  2. Ferguson v. Friendfinder, 94 Cal. App. 4th 1255 (Cal. 2002). The California Court of Appeals reversed a superior court’s ruling, holding that California’s anti-spam statute did not violate the U.S. Constitution’s dormant commerce clause because it protected the state’s citizens from the economic damage caused by deceptive unsolicited commercial email and it did not unduly burden interstate commerce in light of this legitimate local purpose. In April 2002, the California Supreme Court declined to hear the case. See Ferguson v. Friendfinder, 2002 Cal. LEXIS 2378 (Cal. 2002).
  3. Washington v. Heckel, 143 Wn.2d 824 (2001), cert. denied 534 U.S. 997 (2001). Washington Supreme Court overturned a lower court decision, and held that Washington’s anti-spam statute did not place an impermissible burden on interstate commerce in violation of the dormant Commerce Clause, and was sufficiently limited by reaching only those deceptive unsolicited commercial emails directed to Washington residents or sent from computers in the state.

Case Law

Fraudulent Information and Misrepresentation

  1. America Online, Inc. v. Prime Data Systems Inc., 1998 U.S. Dist. LEXIS 20226 (E.D. Va. 1998). AOL brought suit against alleged spammer who inserted AOL email service domain and trade name into the “Reply To” portion of the junk email being sent out to thousands or millions of recipients, asserting Lanham Act, trespass to chattel and Computer Fraud and Abuse Act causes of action. Recipients erroneously believed the email was transmitted by the referenced system and flooded that system’s servers with complaints sent via the “Reply To” function. AOL estimated that it suffered 1/13th of a cent damages for each “forged” message, leading to a compensatory damage award of $101,400 for about 13 million messages sent by a group of spammers.
  2. CompuServe v. CyberPromotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997). The district court granted a preliminary injunction barring defendant from inserting any false reference to plaintiff in any email, falsely causing any email to appear as if it were sent by or originated from plaintiff or one of plaintiff’s accounts, and using plaintiff’s services in connection with the transmission of email. Furthermore, the court affirmed an ISP’s right to control and limit access to its personal property.
  3. Hotmail Corporation v. Van$ Money Pie, et al., 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998). The district court granted a preliminary injunction in a “forged header” suit against spammers where plaintiff alleged Lanham Act claims, Computer Fraud and Abuse Act claims, trespassing, and breach of the service’s “click wrap” agreement.
  4. America Online, Inc. v. LCGM, Inc., 46 F. Supp. 2d 444 (E.D. Va. 1998). The district court granted summary judgment for AOL under the Lanham Act and other state counts, where defendants had sent bulk unsolicited email messages to AOL subscribers under the subject header “AOL.com.” LCGM had violated AOL’s trademark through its use of the AOL.com domain name and the Court ordered LCGM to cease its transmission of junk email to AOL members. The Court also ruled that LCGM, by employing methods and software designed to defeat AOL’s spam filtering technologies, had committed fraud, implicating both Virginia state and federal computer fraud laws, resulting in one of the first cases to apply computer fraud laws in the anti-spam context. LCGM was ordered to pay to AOL damages and costs, including attorney’s fees, resulting from sending millions of emails to AOL members.
  5. Hartford House, Ltd. v. Microsoft Corp., No. CV778550 (Santa Clara Sup. Ct. Jan. 28, 1999). Plaintiff alleged that Microsoft modified its Internet Explorer email software to filter plaintiff’s competing electronic greeting cards, treating plaintiff’s product as spam and sending it to the junk mail folder. Issuing a preliminary injunction, the Court ordered Microsoft not to distribute, license, or sell any product that includes an electronic mail filter that impedes in any manner the delivery of plaintiff’s greeting cards.

Trespass to Chattels

See main article on Trespass to Chattels.

Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (Cal. 2003). The California Supreme Court ruled that the tort of trespass to chattels did not encompass a mass emailing by a former Intel employee to the company’s system. The court found that the electronic communication neither damaged the recipient computer system nor impaired its functioning, and held that such an electronic communication does not constitute an actionable trespass to personal property.

Prior to the California court’s ruling, several courts held that under certain circumstances, the transmission of unsolicited bulk email through a computer system constitutes the tort of trespass to chattels. See America Online, Inc. v. LCGM, 46 F. Supp. 2d 444, 451-52 (E.D. Va. 1998); Hotmail Corp. v. Van$ Money Pie, Inc., 1998 U.S. Dist. LEXIS 10729 (N.D. Cal. 1998); CompuServe Inc. v. CyberPromotions, Inc., 962 F. Supp. 1015, 1018 (S.D. Ohio 1997).

Federal Law

  1. America Online, Inc. v. Christian Brothers, No. 98 Civ. 8959 (S.D.N.Y. Dec. 14, 1999). The court’s conclusions of law found that sending unsolicited commercial email to AOL subscribers violated the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Sending spam misappropriated services that could have been sold by AOL and impaired the network in violation of the Act. The court, however, declined to apply various state laws urged by AOL (from states with anti-spam statutes), stating that to do so would require analysis under the laws of all 50 states, which would be an excessive burden on the court.
  2. America Online, Inc. v. Greatdeals.net et al., 49 F. Supp. 2d 851 (E.D. Va. 1999). Defendants sent commercial email to AOL subscribers. AOL blocked these emails, and sought damages and an injunction. Defendants filed counterclaims alleging discrimination in violation of the Communications Act of 1934, antitrust violations, and interference with contract. The court dismissed all counterclaims, finding that AOL was not a common carrier under the Telecommunications Act of 1996 and rejecting defendants’ antitrust and tortious interference claims.
  3. America Online, Inc. v. National Health Care Discount, Inc., 174 F. Supp. 2d 890 (N.D. Va. 2001). Internet service provider AOL brought an action against defendant corporation for sending 135 million emails to AOL subscribers, in violation of the ISP’s policies, the Computer Fraud and Abuse Act and the Virginia Computer Crimes Act, and as a trespass to AOL’s chattels. The court held that the CFAA’s proscriptions against “accessing” computers are violated when someone sends an email message from his own computer which is then transmitted through other computers until it reaches its destination, thereby making use of, or “accessing,” all those computers. The court held that the evidence at trial established that defendant’s email was of a quantity sufficiently large to cause AOL to suffer a substantial loss and directed entry of judgment for AOL, awarding damages and a permanent injunction.

Federal Preemption of State Laws

The federal CAN-SPAM statute preempts many state anti-spam statutes. Some state statutes had allowed for suits by individual plaintiffs rather than only ISPs, Attorney Generals, or state agencies.

In Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348 (4th Cir. 2006), the Fourth Circuit ruled that CAN-SPAM preempted Oklahoma's anti-spam statute because CAN-SPAM's exception for state laws covering "falsity and deception" requires fraud or tortious misrepresentation, not merely immaterial inaccuracies. The court found that errors in headers such as the 'From' line were immaterial because other information in the emails indicated the source. Id. at 355. Similarly, in Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009), the Ninth Circuit affirmed a District Court ruling that CAN-SPAM preempted Washington's state anti-spam statute and adopted the Mummagraphics preemption standard.

However, parts of California's anti-spam statute have thus far survived preemption. In Balsam v. Trancos, Inc., Cal Sup. Ct. Case No. (Civ.) 471791; March 10, 2010, the plaintiff won damages of $7000 in state court. In Asis Internet Services v. Subscriberbase Inc., Case No. 09-3505, 2010 U.S. Dist. LEXIS 33645 (N.D. Cal. Apr. 1, 2010), the court found that aspects of California law requiring material falsity were not preempted. However, in Hoang v. Reunion.com, No. C-08-3518, 2008 U.S. Dist. LEXIS 85187 (N.D. Cal. Oct. 6, 2008), a different District court found that CAN-SPAM preempted all anti-spam statutes, including California's, except those that required the elements of common law fraud, such as actual reliance and injury. The Ninth Circuit has also certified the question of the scope of California's law to the Supreme Court of California. Kleffman v. Vonage Holdings Corp., 551 F.3d 847 (9th Cir. 2008).

Recent Cases Under State Law and Anti-Spam Statute

California:

  1. MySpace, Inc. v. theglobe.com, Inc. (C.D. Cal. February 28, 2007). MySpace sued theglobe.com alleging they sent at least 100,000 unsolicited and unauthorized commercial email messages to MySpace members using MySpace user accounts in a false and misleading fashion and in violation of the CAN-SPAM Act, the Lanham Act and California Business & Professions Code § 17529.5, as well as trademark infringement, false advertising, breach of contract, breach of the covenant of good faith and fair dealing, and unfair competition. Subsequent discovery in the case disclosed that the total number of unsolicited messages was approximately 400,000. On summary judgment, the Court ruled in MySpace's favor on the CAN-SPAM Act and the California Business & Professions Code, and for breach of contract (as embodied in MySpace’s “Terms of Service” contract). The Order also upheld as valid that portion of MySpace’s Terms of Service contract which provides for liquidated damages of $50 per email message sent after March 17, 2006 in violation of such Terms.
  2. Microsoft Corporation v. Does 1 through 50, No. 5:03-cv-00644 (N.D. Cal. Feb. 14, 2003). Email service provider Hotmail filed a John Doe lawsuit in federal court against suspected spammers under the Computer Fraud and Abuse Act and for trespass and violation of trade secrets, alleging defendants engaged in a “dictionary attacks” upon active Hotmail accounts. Such “dictionary attacks” involve computer programs attempting to guess email addresses and computer passwords by using every entry in a dictionary. The John Doe lawsuit allows a plaintiff to issue subpoenas as part of the discovery process.
  3. Hypertouch v. Link It Software, No. CIV426832, (San Mateo Sup. Ct. Oct. 31, 2002). A California Internet service provider filed suit under California’s anti-spam statute, Cal. Business & Professions Code Section 17538.45, accusing defendant software company Link It Software of failing to label its email ads with “ADV:” in the subject line as required by statute. Plaintiff Hypertouch also alleged Link It Software used illegal spam to promote software and distributorships, consumer bad-credit help, and bulk email services. The suit sought $50 per message in statutory damages, plus an unspecified sum.
  4. Morrison & Foerster v. Etracks.com, No. CIV404294 (San Francisco Sup. Ct. June 26, 2002). A California law firm brought suit against an email marketing company, claiming the marketer sent at least 6,500 pieces of unsolicited email to law firm employees over six months. Morrison & Foerster alleged that Etracks broke California anti-spam laws, Cal. Business & Professions Code Sections 17538.4 and 17538.45, by sending unwanted email advertising a range of items without the required advertising label. Etracks denied the charges and asserted that all email sent was “opt-in.”

Georgia:

  1. Earthlink, Inc. v. Doe, No. 01-cv-2097 (N.D. Ga. 2001); Earthlink, Inc. v. Krantz, No. 01-cv-2098 (N.D. Ga. 2001); Earthlink, Inc. v. Smith, No. 1: 01-cv-2099 (N.D. Ga. 2001). Earthlink simultaneously filed suit against two men and a number of unidentified individuals for using the company’s networks for “spamming.” In addition, the suit alleged that the defendants fraudulently obtained credit card numbers and other personal information. In July 2002, Earthlink won a default judgment of $24.8 million dollars in its federal lawsuit against defendant Khan Smith.

New Jersey:

  1. Green v. America Online, Inc., 318 F.3d 465 (3d Cir. 2003). The Third Circuit Court of Appeals upheld Internet service provider AOL’s ability to terminate a spammer’s account as not violating the New Jersey Consumer Fraud Act (NJCFA), N.J. Stat. Ann. §§ 56:8-1, et seq. Plaintiff Green contended that AOL committed consumer fraud because, after promising its users unlimited Internet access and email, AOL hired outside companies to prevent them from sending objectionable or unlawful email. The Court held that AOL exercised its rights under the Member Agreement to protect its members from objectionable material by preventing unsolicited bulk email from entering or utilizing the network, that AOL did not act unconscionably, and that AOL’s Member Agreement was not dishonest or entered into in bad faith. In addition, 47 U.S.C. Section 230(c)(2) of the Communications Decency Act protects an interactive computer service from liability for any action voluntarily taken in good faith to restrict access or availability of material that the provider or user considers to be objectionable. See Chapter 1 (C).

New York:

  1. MonsterHut Inc. v. PaeTec Communications Inc., No. 107189-cv-2001 (Sup. Ct. Niagara Co. 2001), aff ’d, 294 A.D.2d 945 (4th Dept. 2002). Email advertiser MonsterHut sued Internet service provider PaeTec Communications after PaeTec terminated its ISP services based on MonsterHut’s alleged spamming. Where PaeTec’s Acceptable Use Guidelines clearly prohibited spamming, the New York appellate court reversed a lower court ruling and held that PaeTec was within its rights in terminating the ISP agreement. MonsterHut had breached the agreement by sending spam in violation of the terms of the Acceptable Use Guidelines.
  2. People of the State of New York v. MonsterHut, Inc., (N.Y. Sup. Ct., Feb. 3, 2003). A New York appellate court held that email advertiser MonsterHut engaged in false advertising and deceptive business practices by misrepresenting its method of obtaining consent from consumers. In its ruling, the Court clarified that an “opt-in” method of consent or permission-based protocol must consist of an affirmative act of approval by the recipient of the email. The Court rejected various other interpretations of “opt-in” as lacking foundation in law or generally accepted industry wide standards, and stated that any consent obtained through a consumer’s inaction must be classified as an “opt-out” method of consent.

Virginia:

  1. Verizon Online Services, Inc. v. Ralsky, 203 F. Supp. 2d. 601 (E.D. Va. 2002). Verizon filed a lawsuit against Ralsky and his Additional Benefits company, one of the largest email advertising companies in the nation with over 150 email domains, after Verizon Online customers were inundated with millions of email solicitations. Verizon alleged violations of the Virginia Computer Crimes Act, Va. Code § 18.2-152.1, et seq., the federal Computer Fraud and Abuse Act, and common law trespass to chattel and conspiracy. In October 2002, Verizon and Ralsky entered into a settlement under which Ralsky agreed to cease sending messages to Verizon Internet customers and to pay an undisclosed amount to Verizon.
  2. America Online, Inc. v. CN Productions, Inc., No. 98-552-A (E.D. Va. 1998). AOL had previously brought suit against CN Productions in 1998, alleging violations of the Lanham Act, Computer Fraud and Abuse Act, Virginia Computer Crimes Act and Virginia common law for transmission of junk email to AOL members and use of “AOL.com” header information. AOL was awarded $1.9 million in damages and an injunction prohibiting further unsolicited email. In May 2001, AOL brought suit seeking contempt against sixteen individuals and thirteen corporate entities, including CN Productions, alleging violation of the 1999 injunction. AOL alleged CN and its associates transmitted more than one billion junk messages promoting adult sites, accounting for a quarter of the complaints AOL received. In October 2002, the United States District Court for the Eastern District of Virginia awarded AOL $6.9 million in damages and fees against those defendants, reaffirming its earlier injunction. The ruling marked one of the first in which damages were awarded under the amended Virginia anti-spam statute, which requires that offenders pay $25,000 for each day they sent junk mail in violation of the statute.

Utah:

  1. Terry Gillman v. Sprint Communications, No. 020406640 (Utah Dist. Ct., 3d Jud. Distr. May 22, 2002). Plaintiff brought a class-action lawsuit alleging defendant Sprint Communications violated the Utah anti-spam law, Utah Code Ann. §13-36-101, et seq., requiring commercial email to include legitimate contact information, a valid means to avoid future messages, and a subject line containing the prefix “ADV.” In March 2003, a Utah court granted summary judgment for defendant Sprint Communications, holding that, given the statute’s definition of a preexisting business relationship, the advertisements at issue were not “unsolicited commercial email.” Plaintiff filed similar lawsuits in Utah, alleging pop-up advertisements sent on behalf of Sprint and others were in violation of the Utah anti-spam statute. In July 2003, a Utah court granted defendant’s motion to dismiss, holding that the definition of email and the statute’s prohibitions apply specifically to email sent “through the intermediary of an email service provider” or “to an email address held by a resident” – not to all emails. The court concluded that because Miller did not and could not claim he had received the popup ad at an email address, he could not state a claim under the statute. The court also rejected the claim of trespass to chattels, as plaintiff could not demonstrate actual damage to his computer.
  2. Fenn v. Redmond Venture, Inc., 2004 WL 2314546 (Utah Ct. App. Oct. 15, 2004). The Court of Appeals of Utah held that defendant Redmond was not liable for violations of the Utah’s Unsolicited Commercial and Sexually Explicit Email Act, which has since been repealed, because it did not “cause” the emails to be sent by others and affirmed summary judgment for Redmond. Redmond's contracts contained an “Anti-Spam Agreement” forbidding the use of unsolicited e-mail messages.

Washington:

  1. Washington v. Jason Heckel, d/b/a Natural Instincts, No. 98-2-25480-7 SEA (Wash. Sup. Ct., Mar. 10, 2000). The State alleged that Defendant Jason Heckel had violated Washington State’s Unsolicited Electronic Mail Act, Wash. Rev. Code § 19.190.020(1)(b) and the Consumer Protection Act, Wash. Rev. Code ch. 19.86, by using false or misleading information in the subject line of his messages, and through other misrepresentations. Defendant sent unsolicited commercial email over the Internet, marketing a book on how to profit from the Internet, sending between 100,000 and 1,000,000 messages per week. In October 2002, the court ordered Jason Heckel to pay a $2,000 fine and $94,000 in attorney’s fees to the state.

Jurisdiction

  1. Verizon Online Services Inc. v. Ralsky, 203 F. Supp. 2d 601 (E.D. Va. 2002). Verizon Online Services sued several unknown defendants, alleging that they had sent millions of commercial spam emails to Verizon subscribers interfering with the operations of Verizon’s email servers, seven of which are located in Virginia. The defendants, all located in Michigan, moved to dismiss for lack of personal jurisdiction. The court determined that the defendants should have reasonably expected to be brought into a court in any state where they violated Verizon’s public anti-spam policy and compromised its servers. As such, the court held that the defendants had minimum contacts with the state and Virginia could exercise personal jurisdiction. The court specifically rejected the defendant’s “stream of commerce” argument, stating that unlike a car manufacturer, the defendants knew exactly where the spam was going.
  2. People of the State of New York v. MonsterHut, Inc., (N.Y. Sup. Ct., Feb. 3, 2003). A New York appellate court ruled that actions against alleged spammers are not necessarily limited to occurrences within the state, as New York law prohibiting false advertising and deceptive business practices allows the New York Attorney General to bring an action against anyone who “is about to engage in” deceptive practices in the state.

FTC Enforcement

  1. Chain Letters. In September 2000, the FTC sent letters to 1,000 alleged spammers warning them that their chain letter spam schemes were illegal and instructing them to stop promoting their chain letters, to return any monies received, and to forward a copy of the FTC’s warning letter to everyone who had received their solicitation. On February 12, 2002, the FTC announced it had settled with seven individuals accused of spamming who had been previously notified in September 2000, and that it would be sending warning letters to more than 2,000 individuals still running the chain letter scam.
  2. International Netforce. In April 2002, the FTC joined 12 other U.S. and Canadian government agencies in announcing 63 cases against Web-based fraud, including spam, auction fraud and deceptive Web sites. The collaboration of agencies in the northwestern area, termed the “International Netforce,” resulted from Internet investigations training the FTC conducted with the state and Canadian agencies. The actions also went beyond cases, as several agencies sent warning letters to spammers and conducted a study of “remove me” links on spam. The FTC takes the position that offering an opt-out option and then failing to honor an opt-out request is a deceptive trade practice.

Wireless Devices and Text Messaging

Verizon Wireless LLC v. Acacia National Mortgage Corp., (Colo. Dist. Ct., 2d Jud. Dist. 2001). Verizon filed a lawsuit against Acacia under the Colorado Junk Email law, C.R.S. § 6-2.5-101 et seq., in response to customer complaints of repeated, unsolicited text messages from Acacia.

This was one of the first suits in the state to invoke Colorado’s law to protect text messaging services for wireless subscribers from spam. Verizon alleged Acacia was sending thousands of messages to Verizon Wireless subscribers who receive short-messaging service. In October 2001, Verizon Wireless reached an agreement with Acacia that stopped Acacia from transmitting wireless spam.

The Ninth Circuit also allowed a consumer suit for unwanted text messages under the Telephone Consumer Protection Act (TCPA). Satterfield v. Simon & Schuster, Inc., Inc., 569 F.3d 946 (9th Cir. 2009). The court held that a text message was a 'call' for the purpose of TCPA and that the sender merely needs to use a device capable of random dialing. Id. at 951. Random dialing in the specific call at issue is not necessary. The defendants claimed they had consent to send the messages provided through an online registration system, but the court found that the vague language did not provide express consent to the message sent. Id. at 955.

Chapter 8 - Marketing Issues
Spam · Promotions

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