Rogers Communications Inc. isn't backing down from its fight to get text messages (SMS) and multimedia messages (MMS) included in the unsolicited telemarketing rules (UTR).The company filed a Part VII on December 10, arguing that the telemarketing rules make reference to unsolicited telecommunications, meaning that the regime is designed to prevent communications regardless of the platform (wireline, IP, wireless) and protocol (voice, video alphanumeric).The media and communications conglomerate threatened the appeal last month when it asked the CRTC to expand the scope of a previously announced public notice looking into the telemarketing rules. The commission dismissed Rogers' application on this issue, noting that the telemarketing rules will be reviewed at some point in the future and that looking into the SMS/MMS issue will detract it from adequately studying the three issues raised in the public notice.As well, an informal opinion from the CRTC to Rogers indicates that unsolicited SMS/MMS is considered "cellphone spam" and therefore comes under Industry Canada's jurisdiction. Rogers doesn't buy that argument noting that unsolicited SMS/MMS fall under the definition of unsolicited telecommunications as set out in the Telecommunications Act."The word ‘spam' is a generic term for unsolicited communications and the attempt to define unsolicited SMS/MMS narrowly as ‘cellphone spam' that is outside the commission's jurisdiction has no legal basis in the Telecommunications Act," Rogers tells the commission. "An unsolicited telecommunication is an unsolicited telecommunication, no matter which medium is used to reach the consumer (i.e. live voice call; fax; voice-mail; or SMS/MMS). For this reason alone, Rogers believes that wireless end-users who register on the NDNCL actually are expecting that NO contact, whether by voice or text, will be made to their phone numbers by telemarketers."The company believes that it's only logical the CRTC include SMS/MMS as part of the UTR because it would help the wireless operators save money from having to remove the charges from customers' bills. The Conservative Party indicated during the last election campaign that it would make it make it illegal for wireless companies to charge wireless subscribers for unsolicited text messages.The significant rise in the number of wireless subscribers in Canada, now at about 20 million, paints a big bulls eye for telemarketers to target. Rogers says the use of SMS/MMS for unsolicited telemarketing is likely to increase as telemarketers try new methods of reaching consumers.Rogers points to the US Federal Communications Commission's regime for telemarketing as an effective way of dealing with unsolicited SMS/MMS. The company says the FCC deals with unsolicited text messages in two ways: messages initiated by auto-dialing or involving pre-recorded messages are prohibited with limited exceptions, and any other unsolicited SMS/MMS communications not involving auto-dialer or pre-recorded message are allowed only to wireless subscribers whose numbers are not included in the Do Not Call Registry."Because the vast majority of unsolicited SMS/MMS messages are sent via automation or involve prerecorded messages, this regime ensures that unsolicited SMS/MMS are virtually banned," states Rogers in its application to the CRTC.In its decision denying the request to expand the scope of the current unsolicited telemarketing rules proceeding, the commission noted it "would hamper" its ability to adequately consider the issues enunciated in the public notice.Rogers disagrees. "To the contrary, including unsolicited SMS/MMS now will ensure a smooth and consistent implementation of the rules across all eligible communications. All that is required is simply to add unsolicited SMS/MMS to the types of communications that can not be made to a telephone number that is submitted to the NDNCL database," reads the company's Part VII. "Telemarketers will access the NDNCL database the same way and will simply ensure that they do not send SMS, MMS, voice, fax or voice casting to any number therein."