IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE RODNEY L JOFFE Plaintiff Appellee v ACACIA MORTGAGE CORPORATION an Arizona corporation f k a ACACIA NATIONAL MORTGAGE CORPORATION an Arizona corporation Defendant Appellant 1 CA CV 02 0701 DEPARTMENT E OPINION FILED 9 20 05 Appeal from the Superior Court in Maricopa County Cause No CV01 009399 The Honorable Gary E Donahoe Judge AFFIRMED Osborn Maledon P A By Thomas L Hudson and Daniel L Kaplan Attorneys for Defendant Appellant Phoenix Rudner Law Offices By Steven M Rudner and John C Josefsberg Attorneys for Plaintiff Appellee Dallas TX N O R R I S 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 1 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 message stated mortgage 6 875 C arla Still www AcaciaNational com Greenspan lowered interested rates 30 602 944 7200 On March 21 2001 Joffe The yr or 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 1 Still want new mortgage 480 897 8944 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 1 We cite to the current version of the applicable statutes if no revisions material to the decision have occurred 2 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 2 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 transmitted to Joffe s cellular telephone number that could be 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 3 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 counterclaim Acacia answered the complaint and filed a 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 2 For privacy reasons we have deleted the last seven digits of Joffe s cellular telephone number 3 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 4 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 5 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 4 the United States Constitution 6 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 7 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 3 On April 15 2003 relying on our opinion in Mezey v Fioramonti 204 Ariz 599 65 P 3d 980 App 2003 overruled by Bilke v State 206 Ariz 462 80 P 3d 269 2003 this court dismissed Acacia s appeal as an improper interlocutory appeal On February 13 2004 the Arizona Supreme Court remanded the case to this court for reconsideration in light of Bilke 206 Ariz at 465 12 80 P 3d at 272 A R S 12 2101 G allows appeals from interlocutory judgments when only remaining issue determines amount of recovery We determined the superior court s order granting partial summary judgment complied with
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