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Attorneys are warning advertisers and marketers to stay clear of pushing products through text messaging on cellphones, a practice that has triggered more than a dozen wireless spamming lawsuits in the last year. The lawsuits � filed by wireless carriers and a handful of attorneys general � claim that wireless spammers are touting everything from nail-enhancement drugs to penny stocks, outraging customers and violating federal privacy laws. “They absolutely should stay away from it,” said attorney Benjamin Mulcahy, one of the attorneys advising companies against sending unsolicited text messages. Mulcahy of the New York office of Los Angeles-based Sheppard, Mullin, Richter & Hampton said that there are three key legal pitfalls to pushing products or services through text messaging. “First, it violates [Federal Communications Commission] regs if it’s done without the informed consent of the recipient,” Mulcahy said. “Second, it violates the Mobile Marketing Association’s code of conduct. Third, it’s just bad for business to irritate customers.” Verizon strikes back Most recently, Verizon Wireless filed a lawsuit against Nevada-based I-Vest Global Corp. and various “John Does,” alleging that they tried to send more than 12 million text messages offering stock and real estate for sale to Verizon customers. Verizon is seeking a permanent injunction and monetary damages. Cellco Partnership v. I-Vest Global Corp., No. 3:33-av-00001 (D.N.J.). I-Vest has yet to respond to the lawsuit. Cingular Wireless also has filed several wireless spam lawsuits in the past year, along with state attorneys general in Illinois and Georgia. Currently, Illinois has a lawsuit pending against C & C Global Enterprises LLC, an Internet-based firm that allegedly marketed time shares to cellphone users, costing many of them unexpected charges. Illinois v. C & C Global Enterprises LLC, No. 3:07 C 3021 (C.D. Ill.). Thomas C. Pavlik Jr. of the Delano Law Offices in Springfield, Ill., who is representing C & C Global in the lawsuit filed by the Illinois attorney general, denied any wrongdoing by his client. “C & C Global denies the allegations. Sending text messages isn’t part of my client’s business,” Pavlik said. He would elaborate no further. According to court documents, C & C Global is a Nevada company with its principal base of business in Daytona Beach, Fla. It gathers personal contact information of individuals who have expressed an interest in selling or renting timeshares. “The defendants do not send text messages advertising timeshare sales services or any other services,” C & C stated in court records. “Rather, the Defendants purchase leads from third parties, and it is those third parties, and not the Defendants, who generate the leads by various means, possibly including the sending of text messages,” the records stated. Privacy rights issue Customer annoyances aside, wireless spammers are violating consumers’ privacy rights, said attorney Leigh Schachter, a senior litigator for Verizon Wireless. “This is an issue of customer privacy because cellular phone numbers are private,” said Schachter, adding that wireless spam can “take over our e-mail or text messaging system and can do damage to our system.” According to Schachter, text messaging scams are generally litigated under the Telephone Consumer Protection Act of 1991, which makes it illegal to send unsolicited messages or make calls to a wireless phone number using an automatic dialing system. The Do Not Call Registry list also protects cellphone numbers from spammers. Schachter said that, in the past year, Verizon has been successful in seeking injunctions against spammers. In February, Verizon Wireless obtained a permanent injunction and a $108,000 judgment against a company that allegedly sent nearly 100,000 text messages offering a prize vacation cruise. Cellco Partnership v. Passport Holding LLC, No. 05-CV-5515-MLC-TJB (D.N.J.). Last year, Verizon won damages against another defendant arising from the same incident. Schachter explained that what makes wireless spamming so difficult is finding the actual perpetrator. “This is sort of like a cat-and-mouse game,” Schachter said. “We want to be one step ahead of the bad guys.”

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