• by Wendy Davis  @wendyndavis, October 16, 2004

Tough new Federal Communications Commission rules designed to take on the nascent problem of wireless spam go into effect today.

The new provisions, which flesh out the Can-Spam Act, ban unsolicited commercial text messages to consumers, unless they have opted to receive such messages, or already have a relationship with the sender. The rules prohibit marketers from sending text-messages through the Internet to wireless devices, such as cell phones and PDAs. They don't apply to ads sent to e-mail addresses that are then forwarded to wireless devices such as BlackBerrys.

The wireless rules are more stringent than the regulations banning spam to e-mail accounts, said attorney Jerry Spiegel, a partner at New York's Frankfurt Kurnit Klein & Selz. Significantly, while consumers can grant marketers permission to send them messages via mobile phone, they can't do so in response to an unsolicited text message. In other words, customers must initially opt-in using some other device than a cell phone. Also, the regulations specify that marketers must make their affiliates' identities clear to consumers.

Largely, Siegel said, these more demanding measures are meant to protect consumers financially because many consumers pay for each text-message.

Unlike the legislation banning e-mail spam, which was passed late last year--well after spam had become pervasive--the new rules are an attempt to head off a potential problem at the pass. "Wireless spam--it's not something that is widespread," said Spiegel. "This rule-making is designed to prevent it from becoming widespread."

But, while text-message spamming is still largely under consumers' radar, industry experts say the phenomenon is growing.

"We have seen, over the last two years, an increase in attempts to spam our customers," said Verizon Wireless spokesman Jeffrey Nelson. Even though Verizon Wireless, based in Bedminster, N.J., uses filters to block spam to cell phones, more and more has been getting through, said Nelson.

In fact, mobile spam has already led to litigation. For instance, earlier this year, Verizon Wireless won an injunction against a Rhode Island resident who allegedly sent millions of unsolicited text messages to customers this year.

Mobile marketing specialists also predict that advertising to wireless devices is about to become much more common. "Cell phones are not just for voice communication any longer," said Tom Burgess, CEO of Third Screen Media of Waltham, Mass. (See related story in MDN.)

The main advantage of advertising to cells, said Burgess, is that marketers are virtually guaranteed the consumer will see an ad sent to a wireless phone. "The market is much more on a one-to-one basis," said Burgess. Consumers might have several e-mail addresses, he added, but only one cell phone.

Karim Sanjabi, executive vice president for innovation at media planning agency Carat Interactive, said his agency also has worked with marketers who did mobile campaigns. In the United Kingdom, Carat helped Adidas with a text-messaging campaign that involved sending ads to consumers who agreed to receive them in exchange for a free video game downloaded to their cell phones.

Burgess says his company also has found consumers willing to receive text messages. For example, Third Screen recently text-messaged coupons to Dunkin Donuts' customers in the Boston area.

He added that the company's seeing "some nice budgets"--upwards of $100,000 in some cases--for text-message marketing. And he expects that figure to grow even higher as cell phones become more sophisticated and more capable of handling longer messages.

Currently, text messages currently are limited to 160 characters--which doesn't give advertisers much room to get their word out. But some, such as Burgess, are betting that mobile phones will soon become sophisticated enough to handle more complex ads. "Two thousand and five," he predicted, "will be the year of high-bandwidth handsets."