The case, Rodney L. Joffe v. Acacia Mortgage Corp., was brought before a three-judge appeals court panel. The lower court found that Acacia had "violated" the TCPA (Telephone Consumer Protection Act) of 1991 by "delivering unsolicited advertisements, in the form of text messages, to Joffes cellular phone," and the appeals court affirmed the decision.
"Acacia argues the superior court should not have ruled against it because TCPA does not apply to text messages, and, if it does, the TCPA violated its rights under the First Amendment," Judge Patricia K. Norris wrote for the court, in an opinion obtained by Ziff Davis Internet.
"We affirm the superior courts order and hold that TCPA applies to the text messages at issue here and does not violate Acacias First Amendment rights," Norris wrote.
Brett Johnson, an intellectual property attorney in the Dallas office of Fish & Richardson PC, said that the panel made the right decision on the case.
"Because the TCPA of 1991 expressly includes the prohibition against initiation of a telephone call or message for advertising purposes when it defines telephone solicitation, the panel was squarely within the bound of the language used by Congress to protect consumers from unwanted cell phone advertising," Johnson said to Ziff Davis Internet. "Congress did not intend, and the panel did not find, any distinction between a phone call and text messages to cellular users."
The case began more than four years ago, on Jan. 6, 2001, when Joffes mobile telephone rang unexpectedly. When he answered the phone, he discovered that he had received an "unrequested text message solicitation from Acacia, a mortgage company," Judge Norris wrote in the opinion.
The text message said, "Greenspan lowered rates; 30 year mortgage at 6.875 percent. Still Interested?" and gave phone and e-mail contact information.
About two months later, on March 21, 2001, Joffe received yet another unsolicited text message on his phone, stating, "Federal Reserve just cut rates by a half a percent. Still want new mortgage?"
The messages, the judge said, were part of a marketing campaign to advertise low-interest rate mortgages, and, though they were received by Joffe, were addressed to "Carla" and "Mr. Simms" respectively.