Arizona Court Rules Against Unwanted Text Messaging

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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