In what is being described by observers as an “FCC loophole,” a Virginia marketing firm has been sending out political attack ads via text message, which consumers without unlimited texting plans are forced to pay for. ccAdvertising sent out the mass of text messages—disparaging Barack Obama’s presidential campaign, stance on abortion, and views on same-sex marriage—to residents of Washington, D.C. on October 30th. As these unsolicited messages came directly after Hurricane Sandy, the timing was particularly bad.The texts came from websites associated with ccAdvertising; they appeared on mobile phones and smart phones at random, and enough area reporters received them to start digging around, connecting the websites to the marketing firm. ccAdvertising’s owner, Gabriel Joseph, is claiming this spurious tactic is an example of free speech, and allowable under the Telephone Consumer Protection Act (“TCPA”). On October 25, almost a week before the political attack-text campaign, Joseph told Campaigns & Elections (a political and news website) he was part of an FCC review of the practice of political text messages, and that banning messaging campaigns was unconstitutional and against the intent of the First Amendment. These efforts “take away Americans’ free speech rights that are now protected by current law, FCC regulations and the Constitution of the United States,” Joseph told the website.While accommodating unsolicited attack ads that citizens must pay for was probably not in the Framers’ vision, Joseph has been able to get away with it by using a practice called “email-to-text” messaging. This practice uses websites, not texting services, to send outgoing e-mail to cellphone numbers as text messages. ccAdvertising further contends that people with unlimited texting plans don’t pay for the messages, thus, the texts are permissible under the TCPA. It remains unclear how the mass-messaging services can determine who has unlimited texting and who does not.Gabriel Joseph’s chief opponent is Scott Goodstein of the mobile firm Revolution Messaging; Goodstein filed a complaint with the FCC in January over ccAdvertising’s practices, asking that Joseph’s claim to have technology that differentiates among carriers be proven. In May, Goodstein wrote an open letter to the FCC, saying, “In order to prevent these unscrupulous consultants from sending these unwanted text messages, which may cost the text message recipient, you must address this issue now.” The FCC has issued a general advisory about text spam in September and will hear more public comments this month; an FCC ruling is expecting in December.Just to really show you where Mr. Joseph stands on free speech, consider his response when asked about his tactics by Campaigns & Elections: “Am I worried about taking on a free speech case in this era of Citizens United? No.” This attitude reveals the real strategy behind ccAdvertising’s mass text campaign: spam people with political messages, make them foot the bill, then claim protection under the First Amendment. A strong public reaction (along with the current heavy media coverage) may be crucial to shutting down such an unethical operation.So, what should you do when you get an unsolicited text message? Contact Mike Agruss Law, for a free consultation. The Federal Trade Commission has stopped billions, yes billions, of unwanted robocalls and unsolicited text messages in the last two years. Mike Agruss Law, will do the same for you. We will aggressively enforce the law to stop robocalls and unsolicited text messages. Not only will we stop the calls and texts, but you may be entitled to money damages, too. Damages in TCPA cases range from $500.00 – $1,500.00 per call or text. Contact us today for a free consultation.