In a case of first impression, the Arizona Court of Appeals, Division One, ruled that the term “call,” as used in the Telephone Consumer Protection Act (“TCPA,”) is broad enough to encompass emails sent to cellular phones via Short Message Service (“SMS”). SMS messages are text of up to 160 characters that are sent to cellular phones and pagers. Many cellular carriers allow emails sent to an address containing a phone number (such as 1234567890@phonecompany.com) to be transmitted to the cellular phone customer as an SMS message. In 2001, defendant Acacia Mortgage Corp. (“Acacia”) used its computers to randomly generate these types of email addresses and sent out solicitations about low mortgage rates. Plaintiff Rodney L. Joffe (“Joffe”) received Acacia’s SMS text messages on his cell phone and sued Acacia, alleging violation of the TCPA. The TCPA prohibits, in part, any person from making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system…to any telephone number assigned to…a cellular telephone service…or any other service for which the called party is charged for the call.” The lower court granted partial summary judgment in favor of Joffe, rejecting Acacia’s claim that it could not have violated the TCPA since it did not make a traditional voice call to Joffe’s cell phone. The Court of Appeals affirmed, addressing and rejecting three separate arguments by Acacia: (1) that emails sent via SMS to cellular phones are not “calls” made with an “automatic dialing system”; (2) that because the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”) and implementing regulations against email solicitation govern SMS messages, the TCPA cannot be construed to apply to them; and (3) that the TCPA is an unconstitutional abridgement of Acacia’s First Amendment rights.
The central element of Acacia’s claim was that it had simply sent email to an email address, which was not a telephone “call” because it did not have the potential for “two-way real time voice ‘intercommunication.’” The Court, however, found no definition of the term “call,” either in the TCPA or in case law, and none that required this capability. Looking to the plain language of the statute and to legislative history, the court held that any attempt to communicate by telephone constitutes a “call” under the TCPA, even if the attempt does not present the potential for two-way voice intercommunication. Under this expansive definition, the court found that Acacia had not simply sent emails to an email address but had “co-opted the SMS service” to deliver messages by telephone.
To determine whether the prohibitions of the TCPA applied to Acacia’s activities, the Court further examined whether Acacia’s computers could be considered “automatic dialing systems.” The Court noted that Congress intended the TCPA to anticipate changes in telemarketing technologies. Under this forward-looking interpretation of the statute, Acacia computers’ email, used to send SMS solicitations to cellular phones, constituted prohibited “calls” made by an “automatic dialing system.”
Acacia also argued that regulation of SMS messages under the CAN-SPAM Act precluded application of the TCPA because it demonstrated that Congress did not intend the TCPA to apply to them. The court noted, however, that Congress considered this issue and explicitly stated that nothing in the CAN-SPAM Act should be interpreted to preclude or override the applicability of the TCPA. The final issue raised on appeal was whether the TCPA’s restrictions on telemarketing violated Acacia’s First Amendment rights. The court affirmed the TCPA’s constitutionality, finding that there is a significant governmental interest in protecting consumers from unwanted intrusions and that the TCPA was narrowly tailored to meet that need.
