Corporate & Commercial
Cite as: Daniel L. Hadjinian, Reach Out and Text Someone: How Text Message Spam May Be a Call Under the TCPA, 4 Shidler J. L. Com. & Tech. 3 (Jun. 6, 2007), at <http://www.lctjournal.washington.edu/Vol4/a03Hadjinian.html>
©2007 Daniel L. Hadjinian
The Arizona Court of Appeals recently found a business liable for sending an unsolicited advertisement email to a recipient’s wireless phone in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”). The court concluded that an email sent to a wireless phone constitutes a “call,” and noted that such a commercial call created the same concerns about consumer privacy that Congress intended to remedy with the TCPA. This finding is consistent with an earlier Federal Communications Commission ruling. Preliminary cases indicate that other courts may be willing to adopt a similar interpretation of the TCPA. In light of this recent ruling, this article will consider how various new advertising media and technologies may fall within the scope of the TCPA. Businesses that advertise using electronic delivery methods should consider the effect of this case on their current practices as well as any practices adopted in the future.
<1>The Arizona Court of Appeals recently held that sending an unsolicited email advertisement that is delivered to a recipient’s wireless phone via text message service violates federal law prohibiting unsolicited, automated telemarketing calls to wireless phones. In Joffe v. Acacia Mortgage,2 an email advertisement was sent to a wireless customer’s email address assigned to the phone by a wireless provider. The wireless provider automatically converted all emails received at that address to SMS format (“text messaging”) and routed the message to the customer’s phone.3 The court interpreted the Telephone Consumer Protection Act of 1991 (“TCPA” or “Act”)4 broadly, finding that the text message was a “call” within the terms of the Act because such a message was the type of privacy violation that the Act sought to restrict.5 This is the first application of the TCPA to such a communication, and it appears that no cases have addressed the issue since the Joffe court. Despite this dearth of similar case law, the Joffe court’s close adherence to legislative intent indicates that courts in other jurisdictions may adopt a similar reading of the TCPA. However, it is unlikely that the TCPA will apply more broadly to other technologies that allow wireless users to access the Internet.
<2>The TCPA6 and its corresponding regulations7 prohibit the use of automatic dialing systems or prerecorded voices to make any call to telephone numbers assigned to cellular phones.8 An automatic dialing system is defined in the TCPA as equipment that uses random or sequential number generation to store, produce, and dial telephone numbers.9 An unsolicited advertisement is any material that advertises the commercial availability of property, goods, or services, transmitted to a person without that person’s consent.10 Telephone solicitation is the initiation of a telephone call or message to a person for the purpose of encouraging investment or purchase of property, goods, or services.11 There are exceptions to this rule. A caller may contact persons who have agreed in writing to be contacted.12 A caller may also place a call to a recipient with whom the caller has a prior business13 or personal14 relationship. The TCPA provides a private right of action seeking injunctive and monetary relief in state court for violations of its provisions.15
<3>In Joffe v. Acacia Mortgage the Arizona Court of Appeals found that an unsolicited advertisement originating as an email, converted to a text message, and delivered to a wireless phone, is a “call” within the meaning of the TCPA.16 In reaching this decision, the court found that a “call” need not have the potential for two-way real-time communication.17 It also concluded that the TCPA was intended to apply to technologies that did not exist at the time of the act’s passage. The court further found Congress’ subsequent enactment of the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM)18 did not preempt application of the TCPA to text messages sent to cellular phones.19 In reaching this conclusion, the court noted that under CAN-SPAM, Congress directed the Federal Communications Commission (“FCC”) to promulgate regulations regarding spam and wireless devices20 and explicitly instructed that no provision of CAN-SPAM was intended to preempt the TCPA. 21
<4>In this case, Acacia Morgage used a computer with a random email address generator to send several unsolicited email advertisements to an email address assigned to a wireless customer (Joffe) by his wireless carrier, Verizon Wireless. 22 Verizon also provided Joffe with SMS (or text message) service and, as part of that service, provided the email address to the customer.23 When an email was sent to that address, Verizon automatically converted the email message to SMS format and forwarded the text message to Joffe’s cellular phone.24 Joffe’s cellular phone then received the message from Acacia, advertising a low mortgage rate.25 Joffe brought suit against Acacia alleging violations of the TCPA.26
<5>The Arizona Court of Appeals concluded in Joffe that the TCPA’s provisions apply to any type of call, be it via voice or text communication.27 It defined a “call” as communicating or attempting to communicate by telephone, giving the term its ordinary, contemporary, and common meaning.28 In reaching its decision, the Joffe court also relied on the TCPA’s prohibition on making “any call”29 and its goal of regulating automated calls.30 It therefore found that any attempt to communicate with a cellular phone comes within the scope of the TCPA, regardless of whether two-way communications were possible.31 The court further pointed out that the TCPA explicitly includes calls that lack the potential for real-time communication32 by prohibiting telemarketing calls using an artificial or prerecorded voice.33
<6>The court’s analysis found that the nature of the email address (composed primarily of a phone number) and its resultant automatic conversion to a text message were critical factors.34 The court rejected Acacia’s argument that it had merely sent an email, which is permitted by the TCPA, and focused instead on the automatic conversion of the email to a text message delivered to a wireless phone.35 It characterized Acacia’s actions as “co-opting” the services offered by Joffe’s carrier based on the conversion and forwarding of email messages to cellular phones.36 According to the court, this co-opting guaranteed that the computer-generated text message would be delivered to the customer’s cellular phone.37 The appellate court found the message sent by Acacia to be squarely within the definition of a “call”38 by adopting the trial court’s characterization of the action as initiating a demand to make a connection for the purpose of sending an advertisement.39
<7>The Joffe court further determined that Acacia’s call was in violation of the TCPA because it was using an automatic dialing system.40 The court acknowledged that the advertisement delivery technology used by Acacia did not exist at the time of the TCPA’s passage.41 Nevertheless, the decision emphasized the TCPA’s prohibition on the use of any automatic telephone dialing system.42 It also found that the TCPA’s description of auto-dialers in functional43 —rather than specific—terms demonstrated that the Act’s target was the practice of automatically generating and dialing calls, not the technology behind this practice.44 The court further supported its analysis by citing an FCC order reaching the same conclusion regarding the TCPA and advances in technology.45
<8>Finally, the Joffe court rejected Acacia's argument that CAN-SPAM46 preempted the TCPA's governance of text message ads sent to cell phones. In CAN-SPAM, Congress directed the FCC to issue rules to protect consumers from unwanted commercial messages sent to wireless devices.47 The court noted that the legislative history of CAN-SPAM indicated that the relevant provision was inserted into the statute to address unwanted text messages sent to wireless devices, including cellular phones.48 However, CAN-SPAM’s statutory text explicitly provides that it shall not be interpreted to override the TCPA.49 Relying on this language, the court also noted that its interpretation did not render CAN-SPAM superfluous because the TCPA only applies to calls made using an automated dialing system, a limitation to which CAN-SPAM is not subjected.50 The court therefore concluded that the TCPA was not pre-empted by CAN-SPAM.51
<9>The court’s analysis implies that CAN-SPAM may apply more broadly than the TCPA in two ways: (1) the TCPA requires that an automated device dialing device be used; and (2) the TCPA’s scope is limited to calls, meaning that users of wireless devices other than phones (or users who receive spam in a form other than text message, such as wireless email) would likely have to use CAN-SPAM’s protection from unwanted email, rather than the TCPA’s protection from unwanted calls.
<10>The determination that text messages are within the scope of “calls” under the TCPA is particularly important in the context of the email-to-text conversion at issue in Joffe. Under that analysis, the TCPA provides an outright prohibition on sending unsolicited text spam to cell phones, which includes unsolicited commercial email automatically converted to text message and sent to a cell phone.52 By contrast, CAN-SPAM can require the recipient’s consent in some cases of text spam,53 but for traditional unsolicited commercial email it requires recipients to “opt out” of future receipt by notifying the sender – meaning that a recipient must first receive unsolicited commercial email in order to avoid further spam.54 The Joffe court’s analysis therefore brings certain unsolicited commercial email within the scope of the TCPA, protecting consumers from the need to incur costly, unwanted texts before opting out.
<11>Joffe raises two important questions regarding the future of advertising to cellular phones and other wireless devices: (1) whether the TCPA will be applied to text messages sent via email; and (2) whether this new analysis will be applied to other technological devices as the lines between traditional forms of communication continue to blur.
<12>The TCPA’s applicability to email delivered via text message may give rise to further litigation. As in Joffe, future cases may primarily turn on how broadly a court chooses to interpret the provisions of the TCPA. The broad application of the TCPA adopted by the Joffe court appears consistent with Congress’s stated intention to protect consumer privacy.55 This consistency, when considered in combination with FCC findings and the results of a few early cases, indicate that other courts may adopt a similar interpretation of the TCPA.
<13>While Joffe appears to be the first opinion on this issue, it is not the only or even first case of its kind. Verizon Wireless has been active in pursuing litigation against text spammers who target Verizon customers.56 These cases were based on numerous claims, including violation of the TCPA, trespass, and conversion.57 In one case, a court permanently enjoined a text spammer from delivering any more advertisements to Verizon Wireless customers.58 In another, a settlement was reached in which the spammer agreed not to deliver any further text advertisements.59 The text-spammers in both cases allegedly sent thousands of unsolicited text messages to Verizon Wireless customers.60
<14>The TCPA’s legislative history indicates that Congress intended the TCPA to protect consumer privacy and to prevent the disturbance caused to consumers by automated telemarketing calls.61 Consumers and politicians alike have remained concerned about the invasive nature of unsolicited advertisements in the years since the TCPA’s passage. This concern is evidenced by civil actions brought against spammers under state consumer protection laws, and later by Congress’ passage of CAN-SPAM, which preempted those laws.62 Further, when the FCC issued its Report on the Rules and Regulations Implementing the TCPA, it specifically listed text messages as falling within the scope of prohibited calls to wireless devices.63 In reaching that conclusion, the FCC relied on Congress’s findings, thereby adopting its conclusions.64
<15>The TCPA’s legislative history also indicates that one of the primary concerns of consumers was that the transmittal of such messages to wireless devices results in partial shifting of the advertisement’s cost from the sender (ultimately the advertiser) to the consumer recipient.65 This cost shifting occurs because wireless customers are charged for the receipt of each call, which includes text messages. The result is that wireless customers have to pay to receive unsolicited advertisements. While text messaging did not exist at the time of the TCPA’s passage, Congress did intend for the TCPA to encompass so-called “junk faxes”,66 another form of advertising that shifts cost to consumers.67 The cost-shifting similarity between junk faxes and text message advertisements may weigh in favor of the Joffe interpretation.
<16>Will the TCPA also be applied to other types of electronic devices? The lines between traditional forms of communication continue to blur as consumers check email and surf the web from their phones, make phone calls over an Internet connection, and even use software to convert voicemail to email. Perhaps the most prominent blended communications method emerging currently is the proliferation of wireless handheld devices allowing users to surf the Internet and check their email. Cell phones, PDA’s, and Blackberries (to name a few) can all contain such technology, meaning that even traditional email spam could reach a user’s cell phone, and implicate the provisions of the TCPA under a Joffe-type analysis.
<17>The Joffe court holding could be extended to any text message sent to a wireless phone, PDA, or any other wireless communication device. The prohibitions of both the TCPA and the FCC’s regulations are not limited to wireless phones; they extend to any service for which the recipient is charged.68 A text message advertisement sent to a wireless device presents the same privacy and cost shifting issues as a text message advertisement sent to a cellular phone.69 Regardless of the type of wireless device, if a consumer receives an unsolicited text message from an advertiser in a manner that Congress determined is invasive to consumer privacy and shifts part of the cost to the consumer, courts may find such communications to fall within the scope of the TCPA.70
<18>The analysis may differ when handheld wireless devices are used to access email instead of text messages. Courts have found that traditional email spam does not fall within the prohibitions of the TCPA.71 The Joffe court was careful to distinguish normal computer-to-computer email from emails that are automatically converted into text messages.72 Indeed, Congress passed CAN-SPAM with the explicit purpose of dealing with unwanted commercial email despite the existence of the TCPA. Similarly, commentators almost invariably confine their discussions of anti-email spam legislation to CAN-SPAM; at most, they refer to the TCPA as a model for such legislation.73 Both of these facts indicate that neither Congress nor the vast majority of commentators believe that the TCPA’s prohibitions are applicable to traditional computer-to-computer unsolicited commercial email (spam).74
<19>A crucial distinction between email and text messaging is the sender’s knowledge of the message’s invasive effect on the recipient. The Joffe court found that a text message functions in much the same way as a call in that it is a demand to communicate with the recipient, usually signaled by a ring.75 In the case of email to text message where the recipient’s email address is composed of only numbers, or contains a wireless domain name, the sender is put on notice that the message may be sent to a cell phone and therefore place demand and cost burdens on the recipient.76 Unlike an email that will be converted to a text message, an email which is intended to be received solely as an email contains no such demand. In such a case, the email sender has sought to communicate only with a computer via email.77 The recipient may choose to read or discard the email with a leisure that is absent in a call or text message that demands instant communication.78 However, recipients of such spam are not left without recourse - unsolicited commercial email of this sort falls squarely within the purview of CAN-SPAM.79
<20> It remains to be seen whether courts might extend the TCPA to email accessed by consumers via their wireless devices. It seems likely that legislative initiative would be required for an extension of the Joffe principles to emails viewed through an Internet browser on a wireless device.80
<21>The TCPA has traditionally offered a degree of consumer protection from unsolicited automated telemarketing. The decision in Joffe represents a new application of the TCPA to the fight against unsolicited advertisements. The Joffe court chose to interpret the language of the TCPA broadly by concluding that an email message delivered to a cellular phone in the form of a text message is a “call.” That interpretation gives effect to Congress’s stated purpose of restricting the invasion on consumer privacy posed by unsolicited, automated telemarketing and is consistent with FCC rulings. Preliminary indications are that other courts may adopt a similar interpretation of the TCPA, preventing the sending of unsolicited text messages and emails converted to text message. However, because of fundamental differences between text messages and email, it appears unlikely that the TCPA will be applied to email messages accessed from a wireless device.