Spam to Cell Phone Violates TCPA

Spam from a mortgage company sent to a cell phone is a violation of the Telephone Consumer Protection Act of 1991 (TCPA), the Arizona Court of Appeals found.

Rodney L. Joffee received a text message on his cell phone from Acacia Mortgage Corporation advertising low home mortgage rates. He sued Acacia arguing that the message violated the TCPA’s prohibition against using “any automatic dialing system” to make “any call” to “any telephone number assigned to a . . . cellular telephone service.” Acacia used the SMS system that allows cellular telephone subscribers to send and receive short messages.

Acacia argued that it merely was sending an email to the cell phone and not placing a telephone call. The court disagreed: “Using its computers and the Internet, Acacia co-opted the SMS services offered by Joffe’s carrier to deliver SMS text messages to Joffe by telephone. As the trial court correctly observed, Acacia ‘initiated a demand to make a connection . . .for the purpose of delivering a message by telephone encouraging the purchases of services or investment in a product offered’ by it. In so doing, Acacia attempted to communicate by telephone. Under the TCPA, Acacia called Joffe.”

The Arizona court found that the statute does not define “call.” However, the court disagreed with Acacia’s argument that “call” meant only voice communication. “Whether the call had the potential for a two-way real time voice communication is irrelevant,” the court wrote. “Accordingly, we hold an attempt to communicate by telephone constitutes a call under the TCPA even if the attempted communication does not present the potential for two-way real time voice intercommunication.” Not only did Acacia call Joffe but the company also used an automatic dialing system. “By pairing its computers with SMS technology, Acacia did what the TCPA prohibits. It used an automatic telephone dialing system to call a telephone number assigned to a cellular telephone,” the court stated.

Joffe v. Acacia Mortgage Corp., Court of Appeals, Arizona Division One, No. 1 CA-CV 02-0701, September 20, 2005.