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An appeals court in Arizona this week ruled that a federal law that bans autodialing to call mobile phones also covers unsolicited text messages—even though text-messaging technology did not exist when the legislation was crafted.
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.
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“When Acacias e-mails reached Joffes cellular carriers domain, his carrier automatically converted the text, that is, the content of the solicitations, into a format that could be transmitted to Joffes cellular telephone number,” Norris wrote.
Legal analysts said the reason that the case was upheld on appeal is the same reason that the law was written—to protect consumers from unwittingly spending money on cell phone minutes for unwanted text messages.
“Congress recognized that unlike incoming calls at a home phone number, cell phone users incur a cost for minutes used or amount of text contained in a text message, regardless of whether they are sending or receiving calls or messages,” Johnson said.
“Without the TCPA, the consumer is unwillingly made to pay for receipt of advertising that he or she in many cases never desired to begin with and cannot effectively block otherwise.”
Many enterprise customers of mobile phones install proprietary software on handsets to avoid being spammed with unwanted text messages, said Tim Bradley, chief executive officer of AirClic Inc., a Newton, Pa., mobile phone applications developer.
“Nobody wants that garbage interrupting their work,” Bradley said.
A February study by consulting firm Wireless Services Corp. said 43 percent of all text messages sent in the United States are spam, indicating that many electronic inboxes continue to be full of wanted, and unwanted, messages.
Meanwhile, as intellectual property lawyer Daniel Venglarik of Dallas-based law firm Davis Munck PC told Ziff Davis Internet, the federal CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act of 2004 applies to text messages for the period after the Arizona case was filed, and that law provides similar protections to those given by the Arizona appeals courts decision.
“CAN-SPAM applies to anything of this sort on a going-forward basis,” Venglarik said.
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