Why The Unsolicited Anti-Obama Texts Were Legal

The firm likely behind the texts, ccAdvertising, makes a practice of sending emails in the form of text messages to cell phones. The “question is open in front of the Commission,” says the FCC.

A screenshot uploaded to Twitter Tuesday night of an anti-Obama text message. Via Twitter: @jimspellmancnn

A slew of anti-Obama text messages sent Tuesday night appear to be linked to ccAdvertising, a Virginia-based firm specializing in telephone surveys and what the company calls “email-to-text technology.”

That method — which sends emails to cell phones in the form of SMS messages — allowed the firm to deliver unsolicited texts from domains such as gopmessangers.com and informedett.com, all the while skirting existing Federal Communications Commission regulations.

A spokesperson for the FCC directed BuzzFeed to Section 227 of the Telecommunications Act, which prohibits both voice and text calls to wireless numbers “if the call is not made for an emergency purpose or with the prior express consent of the called party.” This September, the FCC also released an enforcement advisory specific to political robocalls and text messages.

But because the messages sent Tuesday night were delivered from website domain names — sent to cell phones as emails, not traditional SMS messages — the texts fall outside current FCC regulations.

The FCC spokesperson told BuzzFeed that, for now, the “question is open in front of the Commission.”

Revolution Messaging — a liberal mobile communications firm whose client list includes the Democratic Senatorial Campaign Committee and giant labor union SEIU — filed a petition for declaratory ruling in January requesting clarification on whether internet-to-phone text messages are covered by the Telephone Consumer Protection Act. The firm argues in the petition that “exempting internet-to-phone text messaging technology from the TCPA would result in severely weakening consumer rights.”

“The sending of unsolicited political text messages is likely to increase exponentially during the 2012 election cycle,” reads the petition. “Those firms engaging in this practice will be encouraged to send such messages to the hundreds of millions of potential voters in the 2012 presidential election.”

In response to the petition, the FCC’s Consumer Bureau issued a public notice for comment — a procedure requiring the FCC to seek the public’s comment on an issue before considering adopting or modifying rules. Final comments on the Revolution Messaging petition are due Dec. 10, 2012.

Until then, unsolicited internet-to-phone text messaging remains legal for firms like ccAdvertising, which was named by Revolution Messaging as a firm that regularly “engages in this practice” and has “already sent millions of these unsolicited texts.”

As noted Wednesday morning by the DailyKos, GoDaddy listed Jason Flanary — an employee at ccAdvertising and a former Republican candidate for Virginia state senate — as the registrant for the websites behind the anti-Obama texts.

But later Wednesday afternoon, the registration information had been modified. Flanary’s name and contact information was replaced with a listing for a “G. Joseph” — likely Gabriel S. Joseph III, president of ccAdvertising. The new listing also includes an email address, clearertechnology@gmail.com, once affiliated with a website called 20noObama12.com, according to the email address’s listing on ipaddressden.com.

Although the texts sent Tuesday night did not appear to be affiliated with the Romney campaign or Republican Party, ccAdvertising was paid for “survey research” by Romney during his first bid for the presidency four years ago. FEC filings show the campaign made a one-time payment of $53,755 to the firm on Aug. 9, 2007.

When asked for comment, ccAdvertising did not explicitly take responsibility for the Tuesday night text messages, but Joseph did insist that his firm was in compliance with all FCC regulations.

“ccAdvertising has scrupulously complied with all laws and regulations affecting its activities,” Joseph told BuzzFeed in an emailed statement. “It appears that statements currently being made about ccAdvertising may be largely motivated by partisan political considerations.”

Joseph added: “We find it interesting that on a day when up to $50 million in television advertising is being transmitted in the battleground states that new media technologies such as that being discussed in the press are getting so much attention.”

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