December, 2009:

The measure (S-1501), sponsored by Vitale, D-Woodbridge, and Sen. Sean Kean, R-Wall, would bar the sending of unsolicited ads by text-messaging. Offending companies would face fines under the state's Consumer Fraud Act:

The good intentions of these legislators is clear, but Biz4NJ proposes that the provisions of the bill as it stands are impractial for the following reasons:

1. The bill would bar the sending of unsolicited ads by text-messaging if they cause recipients to pay fees or if they reduce the number of text messages allotted by their telecommunications provider. Many consumers have unlimited text messages and proving that the consumers available text messages were reduced or additional fees levied is a time consuming process that few consumers would initiate.

2. The content of the text message is not addressed. Text message spammers are more likely to be peddling sex medications, dubious investment products and the like. There do not appear to be provisions that address these groups.

3. Penalties proposed are heavier especially if the spammer knows — or should have known (!)  — that the recipient was a senior citizen or someone with a disability. How do prosecutors establish that a Spammer should have known the background of the recipient!

4. The legislation stipulates provisions that telecom providers already have in place such as requiring telecommunications to allow consumers the option to block all text messages.

5. Someone who sends only one such text message during a 12-month period would not be liable under the measure. How do you compute that? What if that text message was a serious deception that caused serious harm?

6. Last but not least the Federal CAN-SPAM Act already covers "electronic messages"which most likely covers text messages. Legislators would do well to study these before embarking on this legislation.

Sources:

- Associated Press Reports as presented in the Bergen Record on 12/28/09

- Article in the Begen Record by Federal Trade Commission's Guidelines for the CAN-SPAM Act: http://www.ftc.gov/bcp/edu/pubs/business/ecommerce/bus61.shtm