Verizon Wireless Wins SMS Spam Case

Verizon Wireless emerged the victor from what could be one of the country’s first cases of wireless spamming.

The country’s largest wireless carrier, based in Bedminster, N.J., said it had reached a settlement with Acacia National Mortgage, which calls for the lender to stop sending repeated, unsolicited commercial text messages to Verizon Wireless customers.

Other terms of the settlement were not disclosed, including any possible remuneration for message recipients, who under some plans are charged a per-message fee. Under the Colorado state antispam law on which Verizon based its case, recipients or carriers can sue for $10 per message, plus any actual damages.

Spokespeople from Acacia did not return calls for comment.

Specifically, the Colorado antispam law, enacted last spring, forbids e-mail senders from falsifying headers, using someone else’s identity or failing to identify the message’s actual point of origin. It requires ads also to be tagged “ADV:” in the Subject line, and to offer a working, free way for recipients to be removed from further mailings.

The lawsuit is believed to be the first in the state to extend anti-spam legislation to SMS messages, but it actually sets no legal precedent since it never went to trial.

“Text messaging is a valuable service,” said Verizon Wireless’ Tom Roberts, who is the company’s vice president of marketing for the region. “We intend to preserve its value for our customers … We will take action, including legal action, as quickly as possible to stop the spam.”

Roberts said Verizon Wireless first had taken action against Phoenix-based Acacia following complaints from users in Arizona and Colorado of receiving unwanted SMS messages.

“We found that Acacia was sending thousands of messages to our customers, almost on a daily basis,” he said, adding that Verizon Wireless had requested — unsuccessfully — that Acacia stop.

The wireless carrier then filed a suit against Acacia in Denver District Court, alleging that the company’s practices were illegal under Colorado’s Junk E-mail Law.

“Our goal was to stop Acacia National Mortgage Company from spamming our customers,” Roberts said. “Today’s settlement accomplishes that and puts other potential spammers on notice that Verizon Wireless will take all appropriate legal action to stop junk email from clogging our customers’ service.”

A few states have similar laws governing e-mail marketing that might also govern SMS. Additionally, the federal government is considering several bills that deal with wireless spamming either specifically or as part of a larger legislation on electronic communications.

For instance, U.S. Congressman Rush Holt (D-N.J) earlier this year introduced HR 113, the “Wireless Telephone Spam Protection Act,” which would modify the Communications Act of 1934 to prohibit unsolicited commercial messages. That bill is currently in a House subcommittee.

But efforts at federal legislation of wireless marketing commutations — like similar bills pending concerning e-mail — are tremendously controversial. Generally, consumer and privacy advocates promote “opt-in” messaging, in which users request to receive marketing messages; industry associations favor “opt-out,” which puts the onus on recipients to request their removal from marketers’ lists.

Depending on with which group legislators side, of course, their bills will define what constitutes “unsolicited” mail, and what constitutes legitimate marketing.

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