September 21, 2005
Cellphone Spam Violates TCPA--Joffe v. Acacia Mortgage
Joffe v. Acacia Mortgage Corp., No. 1 CA-CV 02-0701 (Ariz. Ct. App. Sept. 20, 2005).
When is an email a telephone call? The Arizona Court of Appeals says that an email is a telephone call when the receiver gets a text message on a cell phone.
Acacia sent a spam to XYZ@att.net (where XYZ was Joffe's phone number), which was delivered as an SMS. Joffe sues for violation of the Telephone Consumer Protection Act, specifically under the provision limiting the use of “any automatic dialing system” to make “any call” to “any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).
So, the obvious question is: when can an email message constitute a "call"? Or, stated alternatively, if a person sends an email at one end, and the receiver gets an email at the other end, can we label the process (or any intermediate step) a "call"?
The Arizona Court of Appeals seems to think so. The court says "The TCPA’s provisions at issue here apply to any type of call, voice or text."
I had to read that sentence a few times. I've never heard of a text "call"...what is that?
This, of course, is the guts of the case. If the word "call" is intended to mean "telephone call"--as certainly Congress meant--how can there be a text telephone call?
The answer is simple. Regulatory efforts to carve up marketing on a per-technology basis have failed. We can't separate telephone from email from faxes technologically, so efforts to do so legislatively are bound to lead to weird results like an anti-telemarketing law restricting sending email to a person who will receive it as email.
A ruling like this also illustrates the fundamental policy weakness of our various efforts to regulate unsolicited media. To assess the First Amendment challenge, the court has to consider why telemarketing objectionable. We know it is--the survey results are overwhelming--but we don't know why, and the court illustrates this lack of understanding. The court bounces around from saying that privacy in the home is important (but cellphone SMS might be received outside of the home--indeed, in public places) to saying that the "telephone commands our instant attention" (true--is this the problem Congress was attempting to combat?) to a general catch-all statement that the TCPA protects "privacy" (whatever that means). Without a firm understanding of why telemarketing is objectionable, we can't figure out if an unsolicited email causes the same harms as an unsolicited telephone call. I have a lot more to say about this in my next big paper.
In any case, having found that the text message constitutes a call, Acacia loses under the TCPA. Acacia's First Amendment challenge loses as well (as, I believe, every First Amendment challenge to the TCPA). Plaintiff is attempting to form a class, and Acacia is in trouble. If other plaintiffs can get other courts to find that the TCPA regulates "text calls," let the litigation bonanza commence!
See how useful "things" analysis turns out to be?
If you receive an SMS, does your phone ring? If so, is it fair to infer that you've received a call on the phone? If not, is it fair to infer that you've received an email message? Either way, how the audience understands the thing could shortcut the court's elaborate investigation of dictionary meaning of the word "call."
Note, by the way, that the court doesn't bother to investigate the meaning of the statutory phrase "cellular telephone." What if the customer carries a Blackberry cell phone and forwards incoming text messages from the cell number to the email address linked to the Blackberry? Under the court's interpretation of the TCPA, Acacia loses this case, too. Should it?
Posted by: Mike Madison at September 21, 2005 07:44 PM
>The answer is simple. Regulatory efforts to carve up marketing on a per-technology basis have failed. We can't separate telephone from email from faxes technologically, so efforts to do so legislatively are bound to lead to weird results like an anti-telemarketing law restricting sending email to a person who will receive it as email.
The DNC Registry is a stunning success, and it is undeniably better than the solution crafted by self-regulation. Is it comprehensive? Not totally, but that's not the fault of regulation, is it? Banks, retailers, and newspaper publishers did everything they could to poke holes in it.
>Without a firm understanding of why telemarketing is objectionable, we can't figure out if an unsolicited email causes the same harms as an unsolicited telephone call. I have a lot more to say about this in my next big paper.
The court recognizes that telemarketing transfers costs on to the consumer. Fax and SMS marketing is cost-shifted. It's unfair for recipients to pay for it.
Not only that, on many wireless phones, one *has* to view SMS messages before you can delete them. That is, you often have to open the message in order to delete it. So, you can't simply delete it without reading it, nor is it possible for most to have phone-side filtering. So really what this about is forcing people to pay for and read tripe. Go the non-regulatory route, and your phone will be full of it.
Posted by: Chris Hoofnagle at September 23, 2005 08:45 PM