Court nixes some ads sent to cell phones - East Valley Tribune: Business

Court nixes some ads sent to cell phones

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Posted: Wednesday, September 21, 2005 5:47 pm | Updated: 10:00 am, Fri Oct 7, 2011.

PHOENIX - An Arizona appellate court ruled Tuesday that a 1991 federal law's ban against using autodialers to call cell phones applies to sending e-mail text messages with unsolicited advertisements - a technology not in vogue when the law was enacted.

The unanimous ruling by a three-judge Court of Appeals panel upholds a trial judge's pretrial ruling in favor of a man who had sued a mortgage company in 2001 after it sent two unsolicited text messages to his cell phone. Rodney L. Joffe claimed that the calls by Acacia Mortgage Corp. violated the Telephone Consumer Protection Act of 1991.

Acacia argued that it only sent an e-mail and did not "call" Joffe's cell phone, but the Court of Appeals said that was an incomplete description of what the company did when it used e-mail to indirectly connect to Joffe's cell phone via his service provider's e-mail system.

"Even though Acacia used an attenuated method to dial a cell phone telephone number, it nevertheless did so," Judge Patricia K. Norris wrote for the panel.

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Acacia also said the 1991 law did not apply to cell-phone text messaging and that Congress first restricted use of that technology in a 2003 law against unsolicited commercial e-mail - "spam" - sent to wireless devices, but the Court of Appeals said Congress wrote the 1991 law in a way that anticipated advances in automatic telephone dialing technology.

The Court of Appeals rejected Acacia's argument that the 1991 law was an infringement on the company's First Amendment rights to free speech. The law's prohibition on use of autodialers to call cell phones was a narrowly drawn restriction that did not hinge on content, the ruling said.

When Acacia filed its appeal, the case was awaiting a ruling by the trial judge on the man's motion to make the case a class-action lawsuit on behalf of 90,000 other cell-phone users.

Lawyers for Acacia and Joffe did not immediately return calls for comment on the ruling and the status of the case.

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