Arizona Court of Appeals Holds that Telephone Consumer Protection Act Applies to Text Messages Sent

10/1/2005

Joffe v. Acacia Mortgage Corporation, 2005 WL 2303700 (Ariz. Ct. App.) (September 20, 2005)

Telephone Consumer Protection Act
Acacia Mortgage Corporation ("Acacia") appealed from a trial court's order that granted partial summary judgment in favor of the plaintiff, Rodney Joffe. The trial court found that Acacia had violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 USC § 227, by delivering unsolicited advertisements, in the form of text messages, to Joffe's cellular telephone. Acacia argued that the trial court should not have ruled against it because the TCPA does not apply to text messages, and even if it does, the TCPA violated its rights under the First Amendment. The Court of Appeals, however, affirmed the trial court's order and held that the TCPA applies to the text messages at issue and does not violate Acacia's First Amendment rights.

As the court described, "[t]he TCPA was enacted in 1991 to deal with various telemarketing practices arising out of the telemarketing industry's use of sophisticated equipment, generally known as autodialers, to generate millions of automated telephone calls to residential and business telephone subscribers." The court's evaluation of whether the TCPA applied in this case turned on the wording of section 227(b)(1)(A)(iii), and whether Acacia called Joffe and used an "automatic dialing system." The court held that it did. It also held that the TCPA prohibition was narrowly tailored to serve significant and content-neutral governmental interests, and, as a result, did not violate Acacia's First Amendment rights.

The case is available at:

http://www.cofad1.state.az.us/opinionfiles/CV/CV020701.pdf

Jere Webb
Stoel Rives LLP