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Are unwanted text messages received by cell phone customers “calls” that violate the Telephone Consumer Protection Act? So far, the courts have made two rulings on the issue: one saying they do violate the act, another saying they don’t. A New York woman has petitioned the 9th U.S. Circuit Court of Appeals to overturn a recent ruling by a federal court that a promotional text message is not a “call” under the act. Satterfield v. Simon & Schuster Inc., No. 4:06-cv-02893 (N.D. Calif.). Two years ago, an Arizona appellate court found that an unsolicited text message is considered a “call” under the act’s definition of an “automatic telephone dialing system.” Joffe v. Acacia Mortgage Corp., 121 P.3d 831 (Ariz. Ct. App. 2005). The Telephone Consumer Protection Act was passed in 1991 to curb automated telemarketing calls. A key case The Satterfield ruling comes as wireless companies and attorneys general have sued to protect consumers from unsolicited text messages. [NLJ, June 25.] “This case will definitely be a key case when people are evaluating those cases in the future,” said Jeff Neuburger, a partner in the New York office of Thelen Reid Brown Raysman & Steiner. In the Satterfield ruling, the judge’s decision hinged on two points: first, whether the text message came from an “automatic telephone dialing system,” as defined under the act, and second, whether the cell phone user consented prior to receiving the text message. The act permits automated text messages to cell phones if the recipient gives such consent. In Satterfield, a woman agreed to receive “promotions from Nextones affiliates and brands” after obtaining a free ringtone for her young son’s cell phone. Later, her son received a text message stating, “The next call you take may be your last,” as part of an advertising campaign for a Stephen King novel. U.S. District Judge Claudia Wilken of the Northern District of California found that the equipment used to send the text message is not an “automatic telephone dialing system” because it does not “store, produce or call randomly or sequentially generated telephone numbers.” She also said the plaintiff consented to receiving the message. In order to be covered by the act, the “phone numbers dialed have to be randomly or sequentially generated,” said Peter Winik, deputy office managing partner of the Washington office of Latham & Watkins, who represents the defendants, publisher Simon & Schuster Inc. and marketing firm Ipsh! “And the evidence in our case showed that they were not.” “That’s a restrictive reading of the statute,” said Nance Becker, a partner at Chavez & Gertler in Mill Valley, Calif., who represents the plaintiff. She said the marketer’s list was based on telephone numbers, not e-mail addresses. Further, her client did not consent because Simon & Schuster has no relationship to Nextones, from whom the text message originated, she said. Becker appealed the ruling on July 26. Closer scrutiny The Satterfield ruling affects recent suits filed against spammers who send unsolicited text messages to cell phones. Many of the suits have been filed under the act, which means, after the Satterfield ruling, “there will be a closer scrutiny as to how the message is actually being sent, to see whether it fits under the statutory definition,” Neuburger said. He also said that, given the ruling, more companies could require the consent of consumers. The ruling conflicts with Joffe, the earlier Arizona decision. That case involved a man who sued a mortgage company after receiving an unsolicited text message to his cell phone. The judge took a broader approach in defining a “call,” concluding that the text message was converted from an e-mail to a telephone call. In January, the U.S. Supreme Court declined to hear the case. In Satterfield, “there was a much more fully developed record about the exact technology that was used,” Winik said. “For whatever reason, in Joffe, the court simply assumed that a certain type of technology was involved in the transmission of those messages,” he added. “Those differences ended up being quite critical.”

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