Excerpts from FCC CG Docket Nos. 04–53 and 02–278 [FCC 04–194], Rules and Regulations Implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991

"We noted that the TCPA and Commission rules that specifically prohibit using automatic telephone dialing systems to call wireless numbers already apply to any type of call, including both voice and text calls."

"We note here that in the event any complaint is filed, the burden of proof rests squarely on the sender, whether authorization has been obtained in written or in oral form. We do so to avoid the likelihood that any businesses will try to fabricate authorization. Given the potential costs and inconvenience to subscribers to receive such MSCMs, it is important that such messages be sent only to those wireless devices belonging to receptive subscribers. We strongly suggest that senders take steps promptly to document that they received such authorization. Recognizing the potential for fraud by both a person signing up someone else to receive MSCMs and by businesses fabricating authorization, we recommend that the business confirm the electronic mail address with a confirmatory notice sent to the recipient requesting a reply. We emphasize that sending any commercial message to a wireless device, including any falsely purporting to be confirmatory messages, is a violation of our rules unless the subscriber has already provided express prior authorization and the sender bears the burden of showing that has occurred."