Reach Out and Text Someone: How Text Message Spam May Be a Call Under the Tcpa

• Jurisdiction: United States,Federal
• Publication year: 2007
• Citation: Vol. 4 No. 1

Shidler Journal of Law, Commerce & Technology Volume 4, Issue 1Summer 2007

Corporate & Commercial

Cite as: Daniel L. Hadjinian, Reach Out and Text Someone: How Text Message Spam May Be a Call Under the TCPA, 4 Shidler J. L. Com. & Tech. 3 (Jun. 6, 2007), at [http://www.lctjournal.washington.edu/Vol4/a03Hadjinian.html]

Reach Out and Text Someone: How Text Message Spam May Be a Call Under the TCPA

Daniel L. Hadjinian1

©2007 Daniel L. Hadjinian

Abstract

The Arizona Court of Appeals recently found a business liable for sending an unsolicited advertisement email to a recipient's wireless phone in violation of the Telephone Consumer Protection Act of 1991 ("TCPA"). The court concluded that an email sent to a wireless phone constitutes a "call," and noted that such a commercial call created the same concerns about consumer privacy that Congress intended to remedy with the TCPA. This finding is consistent with an earlier Federal Communications Commission ruling. Preliminary cases indicate that other courts may be willing to adopt a similar interpretation of the TCPA. In light of this recent ruling, this article will consider how various new advertising media and technologies may fall within the scope of the TCPA. Businesses that advertise using electronic delivery methods should consider the effect of this case on their current practices as well as any practices adopted in the future.

Table of Contents

IntroductionThe TCPAWhen an Email is a CallImplications of the Joffe decision on advertising to cellular phones and other wireless devicesEmail to Cell Phone Text MessagesApplication to Other Communications TechnologiesConclusionPractice Pointers

Introduction

[1] The Arizona Court of Appeals recently held that sending an unsolicited email advertisement that is delivered to a recipient's wireless phone via text message service violates federal law prohibiting unsolicited, automated telemarketing calls to wireless phones. In Joffe v. Acacia Mortgage,2 an email advertisement was sent to a wireless customer's email address assigned to the phone by a wireless provider. The wireless provider automatically converted all emails received at that address to SMS format ("text messaging") and routed the message to the customer's phone.3 The court interpreted the Telephone Consumer Protection Act of 1991 ("TCPA" or "Act")4 broadly, finding that the text message was a "call" within the terms of the Act because such a message was the type of privacy violation that the Act sought to restrict.5 This is the first application of the TCPA to such a communication, and it appears that no cases have addressed the issue since the Joffe court. Despite this dearth of similar case law, the Joffe court's close adherence to legislative intent indicates that courts in other jurisdictions may adopt a similar reading of the TCPA. However, it is unlikely that the TCPA will apply more broadly to other technologies that allow wireless users to access the Internet.

The TCPA

[2] The TCPA6 and its corresponding regulations7 prohibit the use of automatic dialing systems or prerecorded voices to make any call to telephone numbers assigned to cellular phones.8 An automatic dialing system is defined in the TCPA as equipment that uses random or sequential number generation to store, produce, and dial telephone numbers.9 An unsolicited advertisement is any material that advertises the commercial availability of property, goods, or services, transmitted to a person without that person's consent.10 Telephone solicitation is the initiation of a telephone call or message to a person for the purpose of encouraging investment or purchase of property, goods, or services.11 There are exceptions to this rule. A caller may contact persons who have agreed in writing to be contacted.12 A caller may also place a call to a recipient with whom the caller has a prior business13 or personal14 relationship. The TCPA provides a private right of action seeking injunctive and monetary relief in state court for violations of its provisions.15

When is an Email a Call?

[3] In Joffe v. Acacia Mortgage the Arizona Court of Appeals found that an unsolicited advertisement originating as an email, converted to a text message, and delivered to a wireless phone, is a "call" within the meaning of the TCPA.16 In reaching this decision, the court found that a "call" need not have the potential for two-way real-time communication.17 It also concluded that the TCPA was intended to apply to technologies that did not exist at the time of the act's passage. The court further found Congress' subsequent enactment of the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM)18 did not preempt application of the TCPA to text messages sent to cellular phones.19 In reaching this conclusion, the court noted that under CAN-SPAM, Congress directed the Federal Communications Commission ("FCC") to promulgate regulations regarding spam and wireless devices20 and explicitly instructed that no provision of CAN-SPAM was intended to preempt the TCPA. 21

[4] In this case, Acacia Morgage used a computer with a random email address generator to send several unsolicited email advertisements to an email address assigned to a wireless customer (Joffe) by his wireless carrier, Verizon Wireless. 22 Verizon also provided Joffe with SMS (or text message) service and, as part of that service, provided the email address to the customer.23 When an email was sent to that address, Verizon automatically converted the email message to SMS format and forwarded the text message to Joffe's cellular phone.24 Joffe's cellular phone then received the message from Acacia, advertising a low mortgage rate.25 Joffe brought suit against Acacia alleging violations of the TCPA.26

[5] The Arizona Court of Appeals concluded in Joffe that the TCPA's provisions apply to any type of call, be it via voice or text communication.27 It defined a "call" as communicating or attempting to communicate by telephone, giving the term its ordinary, contemporary, and common meaning.28 In reaching its decision, the Joffe court also relied on the TCPA's prohibition on making "any call"29 and its goal of regulating automated calls.30 It therefore found that any attempt to communicate with a cellular phone comes within the scope of the TCPA, regardless of whether two-way communications were possible.31 The court further pointed out that the TCPA explicitly includes calls that lack the potential for real-time communication32 by prohibiting telemarketing calls using an artificial or prerecorded voice.33

[6] The court's analysis found that the nature of the email address (composed primarily of a phone number) and its resultant automatic conversion to a text message were critical factors.34 The court rejected Acacia's argument that it had merely sent an email, which is permitted by the TCPA, and focused instead on...