Arizona Court Bans Text Message Spam

PHOENIX, Ariz. — Legislation that prevents telemarketers from making unsolicited calls to cell phones or sending junk faxes got a boost this week when an Arizona appeals court ruled the law also applies to unsolicited text messages.

The ruling upheld a previous case brought on by Rodney Joffe against Mesa, Ariz.-based Acacia Mortgage in 2001. Joffe had previously sued the company after he received two unsolicited text messages from Acacia detailing mortgage offers from the company. As the case progressed it was discovered that Acacia had sent similar messages to an estimated 90,000 AT&T Wireless users.

Acacia had argued that it hadn’t violated the Telephone Consumer Protection Act of 1991 (TCPA) because the recipients of the messages had technically received them via email. AT&T customers are able to receive messages on their phone if a sender adds “” to the end their number. Employees at Acacia had programmed a computer to email its campaign to the 90,000 customers by automatically adding “” to a large list of telephone numbers.

Judge Patricia K. Norris disagreed with Acacia’s distinction, however, writing in the court’s opinion that the way the TCPA was written took into consideration advances in technology like the one Acacia employed.

"Even though Acacia used an attenuated method to dial a cellphone telephone number, it nevertheless did so," Norris wrote.

Acacia had also argued it had a First Amendment right to send the text messages, which the court also struck down.

"Congress found consumers and businesses were especially frustrated by these calls, viewing them as a nuisance, an invasion of privacy and a threat to interstate commerce," Norris wrote.

Following his success in court, Joffe has said that he may seek a class-action suit on behalf of the other 90,000 cellphone users who were targeted, but no official steps have been taken.

Representatives at Acacia would not discuss the case with XBiz.