Joffe v. Acacia Mortg. Corp.

• Decision Date: 20 September 2005
• Docket Number: No. 1 CA-CV 02-0701.,1 CA-CV 02-0701.
• Citation: 121 P.3d 831,211 Ariz. 325
• Parties: Rodney L. JOFFE, Plaintiff-Appellee, v. ACACIA MORTGAGE CORPORATION, an Arizona corporation, f/k/a Acacia National Mortgage Corporation, an Arizona corporation, Defendant-Appellant.
• Court: Arizona Supreme Court

121 P.3d 831

211 Ariz. 325

Rodney L. JOFFE, Plaintiff-Appellee, v. ACACIA MORTGAGE CORPORATION, an Arizona corporation, f/k/a Acacia National Mortgage Corporation, an Arizona corporation, Defendant-Appellant.

No. 1 CA-CV 02-0701.

Court of Appeals of Arizona, Division One, Department E.

September 20, 2005.

Osborn Maledon, P.A. By Thomas L. Hudson and Daniel L. Kaplan, Phoenix, Attorneys for Defendant-Appellant.

Rudner Law Offices By Steven M. Rudner and John C. Josefsberg, Dallas, TX, Attorneys for Plaintiff-Appellee.

OPINION

NORRIS, Judge.

¶ 1 Acacia Mortgage Corporation ("Acacia") appeals from the superior court's order granting what was in effect partial summary judgment in favor of Rodney Joffe. The superior court found Acacia had violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 (Supp.2005),¹ by delivering unsolicited advertisements, in the form of text messages, to Joffe's cellular telephone. Acacia argues 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. For the following reasons, we affirm the superior court's order and hold the TCPA applies to the text messages at issue here and does not violate Acacia's First Amendment rights.

BACKGROUND AND PROCEDURAL HISTORY

¶ 2 On January 6, 2001, Joffe's cellular telephone rang. When he answered it, he discovered he had received an unrequested text message solicitation from Acacia, a mortgage company. The message stated, "[C]arla, Greenspan lowered rates, 30 yr mortgage=6.875%. Still interested? 602-944-7200 or www.AcaciaNational.com[.]" On March 21, 2001, Joffe received a second text solicitation from Acacia on his cellular telephone. In similar form, this message stated, "Mr. Simms, Federal Reserve just cut rates by 1/2%. Still want new mortgage? 480-897-8944...."

¶ 3 Acacia's messages to Joffe were part of a marketing campaign to advertize low interest rates on home mortgages. Acacia programmed its computers to send the solicitations as electronic mail messages ("e-mail") over the Internet to consumer e-mail addresses. In Joffe's case, Acacia's computers generated his cellular telephone number, "(602)XXX-XXXX,"² plus his cellular telephone carrier's domain name, "att.net," and sent the solicitations to the e-mail address 602XXXXXXX@att.net.

¶ 4 When Acacia's e-mails reached Joffe's cellular carrier's domain, his carrier automatically converted the text, that is, the content of the solicitations, into a format that could be transmitted to Joffe's cellular telephone number. Acacia was thus able to take advantage of a service provided to Joffe by his cellular telephone carrier known as Short Message Service ("SMS"). As discussed in more detail below, SMS allows cellular telephone subscribers to send and receive text messages, known as SMS messages, on their cellular telephones.

¶ 5 On April 26, 2001, Joffe filed a complaint in justice court alleging Acacia had violated the TCPA's prohibition on using "any automatic dialing system" to make "any call" to "any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii). Acacia answered the complaint and filed a counterclaim requesting $55,000 in damages for "harassment." Because the amount sought by Acacia in its counterclaim exceeded the jurisdiction of the justice court, the case was transferred to superior court. After the transfer, Acacia moved for summary judgment arguing the TCPA was inapplicable because it had simply sent Joffe e-mails. The superior court denied the motion:

By using an e-mail address composed primarily of a telephone number, [Acacia] initiated a telephone message to a telephone number assigned to a cellular telephone service. By this method, [Acacia] initiated a demand to make a connection to [Joffe's] cellular telephone for the purpose of delivering a message by telephone encouraging the purchase of services or investment in a product offered by [Acacia]. By doing advertising in this manner, [Acacia] shifted some of the cost of its advertising to those receiving the telephone calls. The Court is of the opinion that such conduct violates the [TCPA].

¶ 6 Following the superior court's ruling, Joffe moved to certify the case as a class action, alleging Acacia had sent the same promotional messages to 90,000 cellular telephones using the same method of transmission and form of e-mail address. Thereafter, Acacia filed a second "motion for summary judgment or, in the alternative, motion for reconsideration," and argued the TCPA was directed at telephone calls that involved two-way voice communications and not at the sending of text messages. In response, Joffe filed a cross-motion for summary judgment and asked the superior court to grant summary judgment one way or the other on the issue of Acacia's liability under the TCPA.

¶ 7 Relying on its prior ruling, the court granted what was in effect partial summary judgment in favor of Joffe and held Acacia liable under the TCPA. The court also rejected Acacia's argument the TCPA violated its rights under the First Amendment to the United States Constitution.

¶ 8 Acacia timely appealed. As a consequence of the appeal, the superior court took no action on the motion to certify the class. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(G) (2003).³

DISCUSSION

¶ 9 Whether the TCPA applies to Acacia's actions turns on the wording of 47 U.S.C. § 227(b)(1)(A)(iii) and the resolution of two issues: first, whether Acacia called Joffe, and, second, if it did, whether Acacia used an "automatic dialing system" to do so.⁴ For the following reasons, we hold Acacia called Joffe using an automatic dialing system. Consequently, we agree with the superior court that Acacia violated the TCPA.

I. The TCPA

¶ 10 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." Section 227(b)(1)(A)(iii) reads as follows:

It shall be unlawful for any person within the United States...

(A) to make 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 or an artificial or prerecorded voice —

...

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

¶ 11 Congress delegated authority to the Federal Communications Commission ("FCC") to promulgate regulations implementing the TCPA's requirements. 47 U.S.C. § 227(b)(2). The FCC's regulation implementing § 227(b)(1)(A)(iii) states:

No person ... may:(1) Initiate any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice ... (iii) To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

47 C.F.R. § 64.1200 (2004).

A. Acacia Called Joffe

¶ 12 The TCPA does not define the word "call." Stating the word call should be given its ordinary meaning, Acacia argues the TCPA only regulates what it describes as ordinary telephone calls — calls that present the potential for two-way real time voice "intercommunication," that is, "a connection that allows two people to speak to each other in `real time' as though they were face-to-face." Under Acacia's description of a call, it did not call Joffe because, first, its text messages lacked the foregoing characteristics of a traditional telephone call, and second, it simply sent e-mail to an e-mail address.

¶ 13 To decide what Congress intended when it used the word call, we apply familiar rules of statutory construction. We begin with the language of the TCPA and interpret its words "as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979).⁵

¶ 14 Viewed in isolation, the word call has many plain and ordinary meanings. See generally Webster's Third New Int'l Dictionary Unabridged 317-18 (1993); Webster's Ninth New Collegiate Dictionary 197 (1990); Random House College Dictionary 192 (1988). Call can be used as both a verb and a noun. As a verb "call" can mean "to command or request ... to come or be present." Webster's Third at 318; Random House College at 192. It can also mean to utter or cry out in a loud voice. Webster's Third at 318; Random House College at 192. Call can also mean "to criticize adversely" as in "she called him on his vulgar language." Webster's Encyclopedic Unabridged Dictionary 211 (1989). As a noun, "call" similarly has multiple meanings. For example, "the cry or vocal sound of a bird or other animal," or "a short visit." Random House Unabridged Dictionary 297 (2nd ed.1993).

¶ 15 Of course, call is also commonly associated with...