By Martin H. Bosworth ConsumerAffairs.Com
Cell phone users frustrated by unsolicited ads and text messages
may have some relief at last. The Arizona Court of Appeals upheld a
ruling that unsolicited text messaging to a cell phone violates
federal laws against telemarketing.
The three-judge panel ruled that Arizona-based Acacia Mortgage
Corporation violated the Telephone Consumer Protection Act (TCPA) of
1991 when it sent two unsolicited text messages to local businessman
Rodney L. Joffe.
The court's ruling stated that text-based short messaging
services (SMS) constituted a "call," just as a voice call or
"autodialed" message would.
Acacia had argued that the TCPA could not have anticipated
technological advances such as text messaging or e-mail when it was
enacted, and thus did not apply.
The judges disagreed, stating in their opinion that, "Congress
intended the TCPA to apply to advances in automatic telephone dialing
technology and to the use of that technology to disrupt the privacy of
residential (and business) telephone subscribers. Protecting the
privacy of the home from unwarranted and unrequested intrusions
constitutes a significant governmental interest."
Joffe filed suit against Acacia in 2001, and was awarded a
pretrial judgment which Acacia appealed. Joffe was petitioning the
court to grant class action status to his lawsuit at the time of the
appeal decision.
The case will now return to the trial court. If Acacia appeals
the ruling, the case could be taken to the state Supreme Court.
Joffe's business ventures have included fighting spam
proliferation from direct marketers and establishing ethical
guidelines for solicitations. His company, Whitehat Inc., designs
marketing structures for companies to advertise without resorting to
spam or junk mail.
"We make sure companies perform e-mail marketing appropriately
and with permission," Joffe told ConsumerAffairs.Com.
Companies such as Jamster have come under fire from consumers
and anti-spam advocates for sending unsolicited e-mails or text
messages to unsuspecting phone subscribers, and in some cases charging
the subscriber even if they haven't purchased anything from the
service.
Joffe commented that since the lawsuit was filed, he has
received "1 or 2 spams on his cellphone in the past four years. I
think they got the hint I was not the right person to be targeting."
Asked if the court ruling might set a precedent against
companies sending unsolicited text messages or e-mails, Joffe replied,
"I sure as hell hope so!"
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Martin H. Bosworth (consumeraffairs@telecom-digest.org)