The prohibition does not apply to messages sent solely to devices using phone numbers, nor does it apply to messages that are "transactional or relationship" messages – relating to, say, a subscriber query or invoice.
The Commission has therefore ordered that an official list of domains – belonging to providers, not individual subscribers – that are used for subscriber messaging services be drawn up. This will be publicly available, to be checked against marketing mailing lists.
Commercial messages cannot be sent to addresses that contain domains that have been on the list for at least 30 days, or at any time prior to 30 days if the sender otherwise knows that it is addressed to a wireless device.
The action forms part of the obligations imposed on the FCC by the much-criticised Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, otherwise known as the CAN-SPAM Act.
The CAN-SPAM Act, which came into force on 1st January 2004, established a framework of administrative, civil, and criminal tools to tackle unsolicited commercial e-mail, but has been dismissed by critics as being far too weak – mostly because the CAN-SPAM Act fails to actually "can" spam.
There is no ban on sending unsolicited commercial e-mail or text messages in the Act. Instead, it requires that spam sent to consumers includes a means of opting-out of the mailing list used by the sender.
Perhaps taking note of the criticism levelled at the Act, the FCC has taken the opposite line. This time there is a ban on the sending of spam, unless the recipient has specifically opted-in to the mailing list, whether orally, on paper or electronically.
"I'm glad that we're taking steps to give consumers the power to stop wireless spam," said Commissioner Michael Copps. "My only hesitation here is our decision to allow companies to obtain opt-in approvals that are not in writing. Oral approvals are harder to verify and may pose problems for us in the future."
FCC Chairman Michael K Powell commented:
"This Order strikes an effective balance between protecting consumers from unwanted messages while minimising the burdens on senders of such messages. By prohibiting all commercial messages to wireless phones and PDAs absent affirmative consent from the consumer, Americans can now use their wireless devices freely, without being bothered by unwanted and annoying messages."
