[roybean]

Arizona Court Dings Mortgage Company for Unsolicited Cell Phone Text Messages In Joffe v. Acacia Mortgage Corporation, the Arizona Court of Appeals held that a mortgage company violated the Telephone Consumer Protection Act of 1991 (TCPA) when it sent an unsolicited text advertisement to 90,000 cell phones. The messages were generated by Acacia's computer system, and not by any individual dialing in the text message. The Court held that the TCPA was violated both by use of a predictive dialer (Acacia's computer) and because the "message" was computer generated. The Court stated:

Enacted in 1991 as an amendment to the Communications Act of 1934, the TCPA was designed to deal with various telemarketing practices arising out of the telemarketing industry's use of sophisticated equipment, generically known as autodialers, to generate millions of automated telephone calls to residential and business telephone subscribers. S. Rep. No. 102-178, at 2-3 (1991), as reprinted in 1991 U.S.C.C.A.N. 1968, 1969-71. 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. Id. at 1; Telephone Consumer Protection Act of 1991, Pub. L. No. 102-243, § 2, 105 Stat. 2394 (1991) (current version at 47 U.S.C. § 227). Accordingly, as relevant here, the TCPA prohibits “any call” using “any automatic dialing telephone system” to “any telephone number assigned to a . . . cellular telephone service.”....

The TCPA does not limit the attempt to communicate by telephone to two-way real time voice “intercommunication,” as Acacia argues. As relevant here, the TCPA states it “shall be unlawful for any person . . . to make any call . . . using an automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii)(emphasis added). It is the act of making a call, that is, of attempting to communicate to a cellular telephone number using certain equipment, that the TCPA prohibits. Whether the call had the potential for a two-way real time voice communication is irrelevant. Accordingly, we hold an attempt to communicate by telephone constitutes a call under the TCPA even if the attempted communication does not present the potential for two way real time voice intercommunication.

Our conclusion that the word call is not restricted to the type of call described by Acacia is consistent with other language in the TCPA provisions at issue here. See King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991) (“[T]he meaning of statutory language, plain or not, depends on context.”). In addition to prohibiting calls by automatic dialing systems, the TCPA also prohibits any call using any artificial or prerecorded voice to a telephone number assigned to a cellular telephone service, or to a residential telephone line. 47 U.S.C. § 227(b)(1)(A)(iii),(b)(1)(B). A call made by an artificial or
prerecorded voice has no potential for a real time voice intercommunication.....

For these reasons, we hold that a call subject to §227(b)(1)(A)(iii) of the TCPA occurs when the caller has made an attempt to communicate by telephone, even if the attempt does not present the potential for a two-way voice intercommunication. A text message may constitute a call subject to the TCPA if the other requirements of the statute are met.

The Court then rejected Acacia's claims that text messages are not "calls" subject to the TCPA, and that its system is not an automatic dialer because the computer does not dial telephone numbers. The Court stated:

[Hedwig]

I think the end got cut off.