THINKING OF SENDING E-MAIL text messages to cell phones? Better think again.
An Arizona appellate court ruled that a ban on automatic dialers spelled out in the Telephone Consumer Protection Act of 1991 (TCPA) applies to e-mail text messages containing unsolicited advertisements, even though text messaging was not widely used when the law was enacted.
The ruling is a victory for Rodney Joffe, who sued Acacia Mortgage Corp. for sending text-message spam to his cell phone, and a defeat for Acacia. Joffe is himself a member of the direct marketing industry. He is CEO of Whitehat.com, a company that offers list, data hygiene and interactive services. He also is founder of CenterGate Research Group LLC, an organization of high-tech entrepreneurs and engineers, and chairman of American Computer Group.
Lawyers for Joffe predicted the decision would set a precedent. “This is the first case of its kind in the country,” said attorney Steven Rudner.
The court wrote that “the TCPA does not limit the attempt to communicate by telephone to two-way real-time voice ‘intercommunication,’ as Acacia argues.”
On the contrary, the court said it’s unlawful for “any person…to make any call…using an automatic telephone dialing system…to any telephone number assigned to a cellular telephone service.”
Rudner said the trial judge’s decision was well reasoned and that he would be “stunned” if Acacia appealed.
This case has been dragging on for nearly five years. It started in 2001 when Joffe sued Acacia in small claims court, charging that it delivered an unsolicited advertisement to his cell phone Joffe, outraged by the advertisement that reached him during a performance of “Riverdance” in Phoenix, vowed to campaign against cell phone spam.
Acacia argued that it only sent an e-mail and did not “call” Joffe’s cell phone. However, the three-judge appeals court said that was an incomplete description of what the company did when it used e-mail to indirectly connect to Joffe’s cell phone via his service provider’s system.
Joffe argued in 2001 that the cost burden for ad messages falls on the cell phone owner.
Acacia reportedly sent the unsolicited messages to 90,000 people during a three-month period.
Network
