WASHINGTON-An Arizona appeals court Tuesday led that text messages sent by autodialers are illegal just as telemarketing calls to mobile phones using autodialers are illegal.
Acacia Mortgage Corp. sent two text messages using a mass e-mail program to Rodney Joffe in 2001. Joffe sued and won a lower court ruling, but Acacia appealed, arguing that the Telephone Consumer Protection Act-a federal law passed in 1991 long before text messaging-only prohibited voice sales calls to cell phones made by autodialers.
Presiding Judge Patricia Norris of the Arizona Appeals Court disagreed. “It is the act of making a call, that is, of attempting to communicate to a cellular telephone number using certain equipment, that the TCPA prohibits. Whether the call had the potential for a two-way real-time voice communication is irrelevant,” wrote Judge Norris.
Norris also rejected Acacia’s argument that the TCPA violated its First Amendment rights. “Application of the TCPA’s restriction on autodialed calls to cellular telephones, including the Internet-to-phone short messaging service calls at issue here, is narrowly tailored to serve the significant and content-neutral governmental interest of protecting consumer privacy from unsolicited telemarketing calls. As applied to Acacia’s conduct, the TCPA did not violate its rights under the First Amendment,” she said.
The court ruling mirrors a similar conclusion made in 2003 by the Federal Communications Commission.
After passage of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or Can Spam Act, in 2003, the FCC also made rules specifically prohibiting spam to wireless devices.
The Can Spam Act was adopted after the implementation of the telemarketing law that created the wildly popular Do-Not-Call Registry.
The Federal Trade Commission was charged with enforcing the anti-spam rules, but the FCC was asked to determine whether additional rules guarding against wireless spam were necessary. The FCC’s rules said that marketers would violate the rules if they sent messages to wireless domain names 30 days after a domain name appeared on the list. The list was first made available in March 2004.
