• by Wendy Davis  @wendyndavis, January 3, 2011

Clearing the way for a potential class-action lawsuit regarding wireless spam, a judge has rejected two marketing companies' argument that a federal law banning text message spam is unconstitutional.

U.S. District Court Judge Claudia Wilken in Seattle ruled last week that the federal Telephone Consumer Protection Act, which has been interpreted to require that companies obtain users' "prior express consent" before sending them text ads, is not too vague to be enforced.

The companies had argued that the federal law did not adequately define the term prior express consent. But Wilken ruled that previous court decisions and rulings by the Federal Communications Commission provided "ample guidance" about how to determine whether users had given marketers permission to send text ads.

The decision means that Illinois resident Christopher Kramer can move forward with his lawsuit against mobile ad company B2Mobile and lead-generation company LeadClick for allegedly sending ads to his cell phone.

Kramer alleged in court papers filed last year that B2Mobile, LeadClick and Autobytel sent him 10 text messages without his permission, including 9 texts that arrived after he expressly opted out of receiving ads. He alleges that the SMS ads directed him to the site www.cars499.com, which in turn directed him to Autobytel's car portal, MyRide.com.

Among other allegations, Kramer said in his complaint that B2Mobile obtained phone numbers from outside companies. Autobytel allegedly had a deal with LeadClick, which allegedly had a contract with B2Mobile.

Autobytel was dropped from the case after it settled with Kramer earlier last year.

B2Mobile and LeadClick attempted to convince a judge that Kramer's lawsuit against them should be dismissed on the theory that the law banning wireless spam without consent is vague given that it doesn't specify the types of actions that will constitute consent. "Because the TCPA is impermissibly vague, mobile advertisers are unable to predict what business practices are adequate to obtain consent to avoid liability, or to defend themselves when large class actions are framed against them on the basis of a single recipient of a text," LeadClick unsuccessfully argued in its court papers.

B2Mobile and LeadClick did not respond to Online Media Daily's requests for comment.

In a blog post about the case, cyberlaw expert Venkat Balasubramani says that the court's ruling serves as a reminder that it can be risky for marketers to send unsolicited ads based on other companies' representations that the users consented to receive the ads.

In other recent cases, marketers who were sued for allegedly sending text-message spam attempted to argue that the federal Telephone Consumer Protection Act doesn't apply to wireless ads. The law itself prohibits companies from using automatic telephone dialing systems to make calls to cell phones unless the owners have consented.

But courts have uniformly held that the law applies to SMS ads. In the most prominent case, the influential 9th Circuit Court of Appeals ruled in 2009 that book publisher Simon & Schuster might have violated law by allegedly sending unsolicited text messages promoting Stephen King's "Cell."