• Court Blocks Cell Phone Spam
  • October 28, 2005
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • Arizona's highest state court has ruled that the Telephone Consumer Protection Act bars delivery of text message solicitations to cellular e-mail addresses.

    In what is apparently the first case interpreting this statutory provision as it applies to cell phone spam, the court found on September 20, 2005, that the TCPA reaches attempts to communicate by telephone -- "even if the attempted communication does not present the potential for two-way real time voice intercommunication." As a result, the TCPA provision applies to any type of call, voice or text message, so long as the other statutory requirements are met, the court ruled.

    The complaint alleged that the conduct of the defendant, a mortgage company called Acacia that programmed its computers to deliver text message solicitations to cellular e-mail addresses, violated the TCPA's ban on using automatic dialing systems to call cell phone numbers. The process worked as follows. Acadia programmed its computers to send messages over the Internet to consumer e-mail addresses. In the plaintiff's case, Acadia's computers generated his cell phone number, plus his cell phone carrier's domain name, and sent the solicitations to the e-mail address. When Acacia's e-mails reached the carrier's domain, the carrier automatically converted the text into a format that could be transmitted to the plaintiff's cell phone number.

    The court rejected the contention of the defendant that the technology it used did not qualify as a call because messages are sent by e-mail to an e-mail address. This description of the technology is incomplete, the court explained: "SMS is a messaging system that allows cellular telephone subscribers to send and receive short messages . . . on their cellular telephones." The message is delivered "through the use of the telephone number assigned to the cellular device."

    The defendant's First Amendment argument fared no better. The court ruled that the restriction at issue "is a content-neutral regulation narrowly tailored by Congress to further a significant governmental interest" -- protecting consumer privacy from unsolicited telemarketing conduct, and thus did not violate the defendant's First Amendment rights. "People keep their cellular phones on their persons at nearly all times: in pockets, purses, and attached to belts. Unlike other modes of communication, the telephone commands our instant attention. While junk mail may be thrown away unopened, and television commercials turned off, the telephone demands to be answered," the court wrote.

    The court also noted that the regulation leaves Acacia free to communicate with consumers by many alternative modes, such as by dialing numbers.

    Significance: The ruling comes as no surprise, and marketers can expect that other courts faced with the same question will rule along the same lines. Marketers who use automatic e-mail programs will need to tweak the technology to ensure that commercial messages are not sent to cellular telephones.