Court Extends Autodialer Ban to Text Ads to Cell Phones

An Appeals Court in Arizona on Tuesday upheld a lower court decision extending the federal ban on using autodialers to call cell phones to sending text messages to cell phones.

“This ruling is a ‘win’ for consumers,” said Erin McGee, spokesperson for CTIA – the Wireless Association, an international nonprofit membership organization representing all sectors of wireless communications – cellular, personal communication services and enhanced specialized mobile radio. “We are supportive of this ruling and the enforcement of the ruling.”

The three judge panel of the Arizona Court of Appeals for District One ruled unanimously that sending unsolicited advertising text messages or “spam” to a cell phone violated the Telephone Consumer Protection Act (TCPA) of 1991 even though the text messaging technology at issue was not popularly in use when the law was enacted.

The original case was brought by Rodney Joffe, who sued Acacia Mortgage Corporation in 2001, after receiving two unsolicited text messages to his cell phone, the Associated Press reports. Specifically, Joffe alleged Acacia violated the TCPA ban on using “an automatic dialing system” to make “any call” to “any telephone number assigned to a cellular telephone.”

Court documents indicate the messages were part of an advertising campaign in which Acacia programmed computer to send e-mail solicitations to consumer e-mail addresses. The consumer e-mail address generated by Acacia for Joffe was his cellular phone number at his carrier’s domain name. Acacia’s e-mail messages were automatically converted to text messages and transmitted by Joffe’s carrier.

The superior court, relying on a prior ruling, rejected Acacia’s argument that the TCPA violated Acacia’s First Amendment rights and held the company liable under the TCPA. Acacia filed an appeal claiming they had not “called” Joffe’s cell phone but rather sent an e-mail to an e-mail address.

The first issue addressed by the Court is whether a text message is a “call”. In the context of telephone use, “call” is a verb meaning “to communicate or attempt to communicate by telephone” according to court documents. In the Court’s view, TCPA was designed to regulate automated attempts to communicate by telephone regardless of whether there is any potential for two-way voice intercommunication. A text message to a cell phone therefore constitutes a “call” and is subject to TCPA.

The Court also found Acacia’s description of what it did, sending an e-mail message to an e-mail address, incomplete. Text messages rely on SMS, a messaging system allowing subscribers to send and receive short messages of approximately 160 characters or less. SMS messages can be transmitted phone-to-phone or Internet-to-phone. In an Internet-to-phone text message the original message is an e-mail directed to an e-mail address where it is converted to a text message that is transmitted to the cellular phone. Accordingly, the Court found that Acacia did not just send an e-mail message to an e-mail address -- it attempted to communicate with him by telephone by co-opting the SMS services of Joffe’s carrier to send a text message to Joffe’s cell phone and so was subject to TCPA.

Finally, the Court rejected Acacia’s argument that their First Amendment rights were violated by TCPA. The Court determined that TCPA serves a significant governmental interest by protecting the privacy of cell phone subscribers, was not broader than necessary to protect consumers from automatic dialing systems and left open sufficient alternatives methods of contacting consumers.

The Appeals Court affirmed the partial summary judgment in favor of Joffe based on these findings.

“The CTIA and members of the wireless industry put a great deal of effort in terms of time and resources, into protecting consumers from wireless spam,” says McGee. “We welcome anyone who wants to help do that.”

The only issue remaining unresolved is Joffe’s motion before the superior court to make the case a class-action lawsuit. The superior court judge delayed certifying the class status of the case when Acacia filed their appeal to the partial summary judgment.

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