A Weblog About Topics and Issues Discussed in the Book Spam Kings by Brian McWilliams

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September 21, 2005

Old law beats new type of spam

"Texting" didn't exist in 1991 when the Telephone Consumer Protection Act became U.S. law. But an Arizona court says the TCPA nonetheless protects cellphone users from text-message (aka SMS) spamming.

The Arizona Court of Appeals this week upheld a 2002 superior court ruling that Acacia Mortgage Corp. violated the TCPA when it sent Rodney Joffe two SMS spams in 2001.

Joffe filed a lawsuit against Acacia in 2001 under the TCPA, seeking $1,000 in damages.

The appeals court yesterday unanimously rejected Acacia's argument that the superior court should not have ruled against it because the TCPA does not apply to text messages, and if it does, the TCPA violated its rights under the First Amendment. (If you like this sort of thing, the court's opinion makes interesting reading. Check it out here.)

Joffe says that, as a result of the appeals court ruling, the case now will go back to the trial court. The judge there must decide two issues: 1.) Did Acacia knowingly and willingly send the cellphone spam? (If so, the court could treble the money awarded) and 2.) Should the case be certified as a class-action lawsuit, involving 89,999 other victims in Arizona?

Joffe told me via email: "I am hopeful that the Court will find in our favor in both instances, and that, as a result, this case will serve notice to marketers who are intent on doing to cellphones what Canter and Seigel did to email that they've made a serious mistake."

Even if he prevails again in court, however, Joffe says he expects Acacia to appeal to the Arizona Supreme Court. No surprise: if the case becomes a class action, Acacia could faces damages as high as $135M.

Posted by brian at September 21, 2005 10:30 PM


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