Autodialers used to send unsolicited e-mail text messages will be a no-no under a ruling last week by an Arizona appellate court.
The ruling moves forward a case filed in 2001, by Rodney L. Joffe, who was outraged when during a performance of Riverdance in Phoenix, he was interrupted by an unsolicited text message from Acacia Mortgage Corp. asking if he was interested in a mortgage.
The court ruled that the Telephone Consumer Protection Act of 1991 banning the use of autodialers to call cell phones applies to sending unsolicited e-mail text messages as well. The unanimous ruling by a three-judge Court of Appeals panel, upheld a trial judge’s ruling in favor of Joffe, who claimed that he was sent two unsolicited text messages to his cell phone from the Mesa, AZ-based Acacia in violation of the 1991 Act.
Acacia’s argument that the 1991 law infringed on its First Amendment rights to free speech were rejected by the court, according to news reports. The judge, Patricia K. Norris, wrote in her ruling that “even though Acacia used an attenuated method to dial a cell phone telephone number, it nevertheless did so.”
“It’s a very, very loud warning to the new wave of advertisers and marketers,” Joffe told PROMO. “That while it may be a great new frontier from a technology point of view, you still have to ask permission to do it.”
Joffe is the chairman-CEO of Tempe, AZ-based WhiteHat, Inc., a direct-marketing computer service bureau. He is considered an Internet expert who has long lobbied against spam.
Officials at Acacia could not be reached for comment.
When Acacia filed its appeal in 2002, the case was awaiting a ruling by the trial judge on Joffe’s motion to classify the case as class-action on behalf of 90,000 others that Joffe said were identified to have received similar unsolicited messages over a three-month period. Joffe said the class-action case could carry damages of $45 million.
“I knew it wasn’t just me,” he said.
Joffe initially filed the lawsuit in 2001 in an Arizona small-claims courts claiming $2,500 in damages. Acacia filed a countersuit claiming harassment, Joffe said.
Last month, Verizon Wireless filed two separate lawsuits against Intelligent Alternatives of San Diego, CA, and Resort Marketing Trends of Coral Springs, FL, claiming the companies used autodialers to send hundreds of thousands of unsolicited recorded calls to mobile phones. These lawsuits also claimed that the companies violated the Telephone Consumer Act as well as state laws. The pitches for timeshares used prizes as incentives to get consumers to call; they were then asked for personal information.
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