Opposition Brief — Acacia Mortgage Mortgage Corp. Corp. v. Joffe (No. 06-408)

No. 06-408

IN THI

Supreme Court of the United States

ACACIA MORTGAGE CORPORATION,

Petitioner.

\

RODNEY L. JOFFE,

Respondent.

Own PETITION FOR A Writ OF CERTIORARI TO THE

COURT OF APPEALS OF ARIZONA, Diviston ONE

BRIEF IN OPPOSITION

STEVEN M. Rt DNER

Counsel of Record

Joun C. JOSEFSBERG

RupNER Law OFFICES

S001 Spring Valley Road

Suite 225F

Dallas. Texas 75224

Attorneys for Respondent

om

ay PIZ.BW

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

Table of Cited: Authorities... <o0 5055055 50s iv

SCN i in ca i R Or oa ee ene l

UMIIONE OF GN CE os ck eed ceceiasen 3

Reasons for Denying the Petition............... 3

I. This Case Does Not Involve An “Important

Issue.” Calls Such As The Ones Acacia Made

To Mr. Joffe’s Cell Phone Are Now Governed

By The CAN-SPAM Act, And The Limitations

Period For Bringing Claims Under The TCPA

For Such Calls Is Closing ............:.. 3

II. The Court of Appeals Opinion Does Not

Threaten To “Interfere” With Congress’

“Carefully-Designed Regulatory Scheme” . 4

Il. The Court Of Appeals Correctly Concluded

That Acacia Made Prohibited “Calls” To Mr.

NDE eS Re vee bo eo eee eae 4

A: RTO oobi ea ee Gee 4

i SE PO a oS a a ee 5

Rs Wt BO Ss Va con cov nee nuntueerns 6

1. The TCPA’s Ban On the Use Of

Automatic Telephone Dialing

Systems For Calling Cellular Phone

RINNE Vc Fetch eee a ceneee en eer 6

ii

: Contents

Page

2. The FCC Regulations Implementing

CE TR ers a ees ee eRe 7

IV. Acacia’s Admitted Activities Are Governed By

Pe RAPE 6 ay 6A RIS IE EON OE CRs 8

A. Acacia “Initiated” Prohibited Telephone

Calls To Mr. Joffe’s Cellular Telephone

B. The Person Or Entity “On Whose Behalf”

Prohibited Calls Are Made Are Liable

Se TOA sos a Ko lnedsanwovars 9

C. The Ban On The Use Automatic

Telephone Dialing Systems To Make

Calls To Cellular Telephones Cannot

Reasonably Be Construed To Extend

Only To Calls Which Involve “The

Transmission Cf Voice Or Sound” .... 10

1. Acacia’s Position Is Contrary To FCC

Rules and Regulations Interpreting :

OP SE TE bv cb ccs ce ei Need yes 10

2. Acacia’s Unreasonable Interpretation

Ri BEN SAR 0k 0 es eee 11

3. Acacia’s Position Is Contrary To

Dectsiomal LAW «cece cc cnes 17

4. The Court Of Appeals Correctly

Ruled That Acacia Made A “Call” .. 18

Contents

V. The Issue Of Class Certification Is Not Before

Ee SE. oa. bo 4a 66S Ea Rs

Vi Tike CAN-SPAM AG oc eiv ewes cues iece

VU. The

TCPA’ Ban On The Use Of Automatic

Telephone Dialing Systems For Sending Text

Messages To Cell Phones Comports With The

Fst AMMO gos o's 6b a ck ees wrest

A.

Conclusion

Moser Is Directly On Point and

COMIIORIIUNE i osik. o's oe CN eed ORNS

The Relevant Portion Of The TCPA Is

“Narrowly Tailored” To Further An

Important Government Interest ......

1. The Protected Interest ..........

2. The Speech Restriction Is “Narrowly

SOO in bck eeekeepkaawe es

The TCPA Leaves Open Alternative

Channels Of Communications .......

oeereeveeevreevreeeeeeeeeeeeeee eee eeeeeee

Page

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21

21

22

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24

25

26

iv

TABLE OF CITED AUTHORITIES

Cases:

Autoplex Leasing, Inc. v. Mfr., 16 S.W.2d 815 (Tx.

ee ne ny Oe ere mee nr riage a

Baker v. Citibank (South Dakota) N.A., 13 F. Supp.2d

Pa Cea Ce SPIO Re oo ks ccs ba tenn ceeks

BMC Ind., Inc. v. Barth Ind., Inc., 160 F.3d 1322 (11th

Cs SE a vod dss wk oe eee cies ie Vester eas

*eeseeenereeeeeveeeeveeenreeteeeeeeeeeeeeeeeseenrereeneee

Consumer Prod. Safety Comm’n v. GTE Sylvania, 447

La PAR hie KE theo WRI EE ODER

Digital Paging Sys., Inc. v. Pub. Serv. Comm’n, 360

Pa Ss Pe CR APP ok sae pbs eb ves bbs

Erienet, Inc. v. Velocity Net, Inc., 156 F.3d 513 (3rd

Cs SEE 8k bbw i'e ooo Ree eae ane eo eRe

FCC v. Pacifica Found, 438 U.S. 726 (1978)-.....

Fernandez v. Brock, 840 F.2d 622 (9th Cir. 1988) ...

Georgia Pub. Serv. Com’n vy. ALLTEL Georgia

Communications Corp., 489 S.E.2d 350 (Ga. App.

DOPED Fine 64-4o obs pV CERCAD A Oe eR

Grado v. Gross, 1984 WL 2467 (D. Mass. 1984) ..

Page

13

13

12

20

12

1]

Cited Authorities

Page

Gregory v. Helvering, 293 U.S. 465 (1935) ...... 12

HCZ Const., Inc. v. First Franklin Financial Corp.,

199 Ariz. 361, 18 P.3d 155 (App. 2001) ....... 8

Hirschey v. FERC. JOE ZO FS oie cb iie se 1]

Hogar Agua v Vida En El Desierto, Inc., 36 F.3d 177

C30 Ci, SO oe Fhe o rs bb hee ee eee 12

In re Pudgie’s Development of NY, Inc., 239 B.R. 688

CANON s NOUN 05 eel cys Ces AOL eee ee Er eres li

In the Matter of Rules and Regulations Implementing

the Telephone Consumer Protection Act of 1991,

FCC Report and Order, 18 F.C.C.R. 14 (Jul. 3,

PN Se eo oa a Fe ae 10

Irvine v. Akron Beacon Journal, 770 N.E.2d 1105

LIAS OE; A, SUES iy kp Cr eas ES ROE REeaD 17, 18

Johnson vy. McCrackin-Sturman Ford, Inc., 527 F.2d

DOT CHAE TOTO hea io Fh CoE 12

Minn. Microwave, 190 N.W.2d 661 (Minn. 1971) . 15

Moser v. FCC, 46 F.3d 970 (9th Cir. 1994) ..... bi, 224 a0

Parkhill v. Minnesota Mut. Life Ins. Co., 995 F. Supp.

Dep CP PE, SOO) io eh cena vet bee 11

Penn Mutual Co. v. Lederer, 252 U.S. 523 (1920) ... = 20

vi

Cited Authorities

People v. Jones, 461 N.Y:S.2d 962 (1983) .......

Radio-Fone, 193 N.W.2d at 447 ................

Rendon vy. Valleycrest Productions, Ltd., 2002 WL

SSSESGE CER CR. BD ivi ve decks ben cue ees

Samsel y. Allstate Ins. Co., 199 Ariz. 480, 19 P.3d

Set LO ROAD 86s dx bed ivcrdesedweeyouees

Scarborough vy. Atlantic Coast Line R. Co., 178 F.2d

pa et. Ek AR L . , RGRSIURi a regreetyt penetra pe gear gu Mey

Sellinger v. Freeway Mobile Home Sales, Inc., 110

Ariz. S73, 521 P.26 TID CSFS) os ce eeccvens

Snyder v. Tucson Police Pub. Safety, 201 Ariz. 137,

Be Te 5 ko hw RR SA EHR DOE ER Re oeheoe rn

Stainless Specialty Mfg. Co. v. Industrial Com’n of

Arizona, 144 Ariz. 12, 695 P.2d 261 (1985) ....

State v. James, 141 Ariz. 141, 685 P.2d 1293 .....

State v. Squires, 426 S.E.2d 738 (S.C. 1992) .....

Szefczek v. Hillsborough Beacon, 668 A.2d 1099 (N.J.

es DOME 65 oa we ees SS ee Dade dees

Thomas v. Myers-Dickson Furniture Co., 479 F.2d

Fae FIT se ess ae ese ee

12

11

12

15

12

vil

Cited Authorities

Page

Turner v. E-Z Check Cashing of Cookeville, TN, Inc.,

35 F. Supp.2d 1042 (M.D. Tenn. 1999) ........ 13

Union Ink Co., Inc. v. AT &T Corp., 801 A.2d 361

CPN. Sem. CA, SAREE) cin cins'e Sede ves evnnwies 13

United States v. Donovan, 429-U.S. 413 (1977) ... 11

Worsham v. Nationwide Ins. Co., 772 A.2d 868 (Md.

EE cas cb ed 2k CE ab ee ees a ee 9

EE ca oc RSet Se bere Rea eek 8

United States Constitution:

PR Pe oe ee Oa OE mT eae 4, 21

Statutes:

15 U.S.C. §§ 7701-7713 $V vies Leo ve Ke Kes 19, 20

yogis Cae Fee en Er er rS ype ry 3

G7 USX. E257 OME oc Fone ve Cece eee 1, 5, 6, 7, 9, 25

Other Authorities:

Barry M. Aarons, Does Phone Competition Still

Matter?, Consumers’ Res. Mag., Apr. 1, 2003 .. 13

Black’s Law Dictionary 705 (6th ed. 1990) ....... 9

Vili

Cited Authorities

Rita Marie Cain, Call Up Someone and Just Say

“Buy” — Telemarketing and the Regulatory

Environment, 31 Am. Bus. L.J. 641 (1994) .....

47 CER, § G41200(a TG) . oie ck ccendnese

David Cohen & Edward D. Kania, The Future of the

Communications Industry: New Products, New

Services, the Need For New Regulatory Paradigms,

13 Comm Law Conspectus 1 (2005) ..........

137 Cong. Rec. $16204-01, $16205 ............

EST LODE. BAC. DEGREE oo pcecevtoseekesa vee

10 FCC Red 12391, 78 Rad. Reg.2d (P&F) 1258

CEP a ids oe es pew cher sed een nea tees

H.R. Report No. 317, 102nd Cong., Ist Sess. 25

CRORE isc ceed ba iwi cere Cea eke es

Random House Webster’s College Dictionary 678

C206 06, TURD) oe ee a RON Ca atin

Restatement (Second) of Torts § 674 cmt. A......

S. Rep. No. 102-178, 102d Cong., Ist Sess. (1991) ..

Nicole B. Stach, Wireless Local Number Portability

and Its Effect On Competition: Can There Be Too

Much of a Good Thing?, 12 Comm Law

CONICS ZI8 COIS oo occ bs cee ee caneciuns

U.S.C.C.A.N. 1968, 1979, accompanying S.1462 ...

Page

7,8

23

15

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INTRODUCTION

Petitioner Acacia Mortgage Corporation (“Acacia”) has

presented no “compelling reasons” for their Petition for a

Writ of Certiorari (“Petition”) to be granted. This case

involves the application of the Telephone Consumer

Protection Act (“TCPA”), codified at 47 U.S.C. § 227 et seq.,

to Acacia’s admitted conduct. Acacia programed its computer

to send promotional e-mail messages to cell phone users,

knowing with absolute certainty that these messages would

reach their targets and result in cell phone calls. When

Respondent Rodney Joffe’s (“Joffe”) cell phone rang on

January 6, 2001, and again on March 21, 2001, he unhappily

discovered that Acacia was sending its intrusive text

messages to his cell phone. [Pet. App. at 2a] When Acacia

brazenly refused to stop sending these messages, Mr. Joffe

filed suit.

This case is not now, nor has it ever been, about the

applicability of the TCPA to e-mails sent to computers. Acacia

knew that its promotional text messages would not end up

on Mr. Joffe’s personal computer as e-mails.’ Acacia knew

this because its text messages were sent to an e-mail address

comprised primarily of Mr. Joffe’s cell phone number,

6024186471 @att.net. Although initiated as e-mails, Acacia

also knew that Mr. Joffe’s cellular telephone provider would

convert them into text messages that would be delivered

1. The text messages Acacia sent to Mr. Joffe’s cell phone are

known as “SMS messages.” An SMS message is a text message

“directed to [a] wireless devic{e] through the use of the telephone

number assigned to the device.” [Pet. App. 13a] An SMS Message

may be transmitted phone-to-phone or, as Acacia did to Mr. Joffe,

Internet-to-phone. [/d.] An Internet-to-phone text message is initially

delivered over the Internet as an e-mail directed to an e-mail address

assigned by a cellular telephone carrier to a subscriber. [/d. at 13a -

14a] When the e-mail reaches the e-mail address, it is converted

automatically by the carrier into a different format that can be

transmitted to the customer’s cellular telephone.” [/d. at 15a}

2

directly to Mr. Joffe’s cellular telephone as calls. Acacia knew

that Mr. Joffe was not going to receive its promotional

messages by accessing his personal computer e-mail account

via his cell phone. Instead, they were going to be foisted

upon Mr. Joffe surreptitiously in the form of text message

phone calls, just as Acacia intended. As the court of appeals

described it, “Acacia co-opted the SMS service offered by

Joffe’s carrier to deliver SMS text messages to Joffe by

telephone.” [Pet. App. 17a]

Acacia’s argument that it only sent e-mails to Mr. Joffe

and did not make any “calls” elevates form over substance.

Far from “ignoring” the plain meaning of the TCPA and

expanding it into something Congress never intended, the

trial court applied the letter and spirit of the law to Acacia’s

admitted conduct. In an 1l-page published decision, a

unanimous court of appeals affirmed. See Joffe v. Acacia -

Mortgage Corp., 462 Ariz. Adv. Rep. 38, 121 P.3d 831 (2005)

(“Opinion”) [Pet. App. la - 29a]

The court of appeals based its decision on a thorough

review of the legislative history of the TCPA, the FCC rules

and regulations implementing the TCPA, and a textual

analysis of the TCPA. After systematically addressing all of

the elements necessary to establish a TCPA violation, the

court of appeals concluded that Mr. Joffe satisfied those

requirements. The Arizona supreme court declined to review

the court of appeals’ decision, and Acacia subsequently filed

its Petition for a Writ of Certiorari with this Court.

Although the court of appeals correctly decided the legal

issues, this Court does not need to reach the merits of the

case in order to conclude that the Petition should not be

granted. As detailed below, the Opinion does not have

prospective application (the calls Acacia made are now

governed by a completely different statutory scheme) and

the limitations period for bringing claims under the TCPA

for using an autodialer to send text messages to cell phone

3

users is closing. With such limited application, the Court would

be constrained to conclude that this case involves an “important

issue.”

Simply put, Petitioner has failed completely to carry its

burden of demonstrating that there are compelling reasons for

this Court to grant the Petition.

STATEMENT OF THE CASE

Respondent generally adopts as its statement the Arizona

court of appeals’ recitation of the background facts. [Pet. App.

at la-Sa]

REASONS FOR DENYING THE PETITION

I. This Case Does Not Involve An “Important Issue.” Calls

Such As The Ones Acacia Made To Mr. Joffe’s Cell

Phone Are Now Governed By The CAN-SPAM Act, And

The Limitations Period For Bringing Claims Under The

TCPA For Such Calls Is Closing

Referencing the number of times the TCPA has been the

subject of judicial decisions, law review articles and trade

publications, together with the fact that this case is one of first

impression, Acacia contends that this case involves “an

important issue of first impression regarding the operation of a

federal statute.” [Petition at 6] Acacia is mistaken.

Since January 1, 2004, calls such as the ones Acacia made

to Mr. Joffe’s cell phone are governed by the CAN-SPAM Act.

The court of appeals interpreted an entirely different statute (the

TCPA) and held that calls such as the ones made by Acacia to

Mr. Joffe’s cell phone violate the TCPA. Further, the limitations

period for asserting claims based on calls that were made before

the CAN-SPAM Act went into effect is rapidly closing.* Because

2. When a federal statute docs not contain a built-in statute

of limitations, the four-year statute of limitations under 28 U.S.C.

§ 1658 applies.

4

the court of appeals Opinion does not apply to the existing

regulatory scheme for such calls, and since the class of

plaintiffs that may still assert claims under the TCPA is

dwindling, the case is one of obvious limited significance.

The Petition should denied for this reason alone.

II. The Court of Appeals Opinion Does Not Threaten To

“Interfere” With Congress’ “Carefully-Designed

Regulatory Scheme”

Acacia is obviously free to challenge the Opinion on the

basis that its conduct is not covered by the TCPA or that the

interpretation given to the TCPA by the court of appeals runs

afoul of the First Amendment. However, Acacia’s assertion

that the Opinion “interferes with Congress’s attempt to

regulate carefully and deliberately in the field of commercial

communication” [Petition at 8] is so misplaced that one can

only wonder why it is being made at all.

Effective January 1, 2004, calls such as the ones Acacia

made to Mr. Joffe are governed by the CAN-SPAM Act. The

unwanted calls Acacia made to Mr. Joffe . cell phone all

occurred before January 1, 2004. The court of appeals held

that the calls Acacia made to Mr. Joffe, all of which occurred

prior to January 1, 2004, violate the TCPA. The Opinion does

not have prospective application and has no impact

whatsoever on the CAN-SPAM Act. Since the Opinion does

not apply to calls governed by the CAN-SPAM ACT, it can

hardly “interfere” with it.

III. The Court Of Appeals Correctly Concluded That

Acacia Made Prohibited “Calls” To Mr. Joffe

A. The TCPA

By concluding that the TCPA prohibits telemarketers

from sending commercial text messages to cell phone users

such as Mr. Joffe, the court of appeals properly applied the

letter and spirit of the law.

5

Enacted in 1991 as part of the Federal Communication Act,

the TCPA seeks to deal with an increasing common nuisance

— telemarketing. See Erienet, Inc. v. Velocity Net, Inc., 156

F.3d 513, 514 (3rd Cir. 1998). The TCPA prohibits various uses

of automatic telephone dialing systems, live unwanted

commercial telephone solicitation, and the use of any device to

send an unsolicited advertisement to a telephone facsimile

machine. Jd. The statute creates a private right of action against

any person that violates its provisions. 47 U.S.C. § 227(b)(3).

The TCPA is a strict liability statute, pursuant to which a plaintiff

can recover actual damages or statutory damages of $500 per

violation, whichever is greater. 47 U.S.C.§ 227(b)(3). If the

violation was done “willfully” or “knowingly,” the court may

treble the damages. Id.

B. Its Purpose

A central purpose of the TCPA is to prevent advertisers

from shifting costs to recipients of unwanted solicitations,

see H.R. Report No. 317, 102nd Cong., Ist Sess. 25 (1991), to

protect consumers from unwanted telephone solicitation,

see id., and to facilitate interstate commerce by restricting certain

uses of facsimile (fax) machines and automatic dialers. See 47

U.S.C.A. § 227. Congress articulated another important purpose

— the risk to public safety when an emergency line is seized by

telemarketers.

The TCPA also furthers another important interest — the

right to be left alone. See Rita Marie Cain, Call Up Someone

and Just Say “Buy” — Telemarketing and the Regulatory

Environment, 31 Am. Bus. L.J. 641, 649 (1994); see also

U.S.C.C.A.N. 1968, 1979, accompanying S.1462 (“this

legislation is designed for the laudable purpose of protecting

the privacy rights of telephone users.”) (President Bush);

Szefczek v. Hillsborough Beacon, 668 A.2d 1099, 1108 (N.J.

Super. 1995) (same). The TCPA’s Author, Senator Hollings, aptly

addressed the privacy concerns underlying the TCPA:

6

Mr. President, I rise today to urge the Senate to

approve S. 1462, the Automated Telephone

Consumer Protection Act. The substitute amendment

before the Senate addresses an enormous public

nuisance. Computerized telephone calls are invading

our homes and destroying our privacy. Consumers

around the country are crying out for Congress to

put a stop to these computerized telephone calls.

Congress has a clear opportunity to protect the

interests of our citizens, and we should not pass up

this chance. Computerized calls are the scourge of

modern civilization. They wake us up in the

morning; they interrupt our dinner at night; they force

the sick and elderly out of bed; they hound us until

we want to rip the telephone right out of the wall.

Even more important, these computerized telephone

calls threaten our personal health and safety .. .

Computerized calls tie up the emergency line of

police, fire, and medical services and prevent real

emergency calls from getting through. These

machines are out of control, and their use is growing

by 30 percent every year. It is telephone terrorism,

and it has got to stop.

137 Cong. Rec. $16204-01, S$16205.

C. Its Reach

1. The TCPA’s Ban On the Use Of Automatic

Telephone Dialing Systems For Calling

Cellular Phone Users

Mr. Joffe’s claims are based upon Section 227(b)(1)(A)(ili)

of the TCPA, which makes it unlawful for any person within

the United States 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

7

automatic telephone dialing system? or an artificial

or prerecorded _voice ... 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 party is charged for the call.

47 U.S.C. § 227(b)(1)(A)(iii).

2. The FCC Regulations Implementing The TCPA

The FCC has issued the following regulation regarding

the use of automatic telephone dialing systems:

(a) 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(a)(1)(ii1).

—

3. Acacia does not challenge the court of appeals’ conclusion

that the computer Acacia used to send its text messages to Mr. Joffe’s

cell phone fits within the statutory definition of an. “automatic

telephone dialing system” under Section 227(a)(1) of the TCPA.

8

IV. Acacia’s Admitted Activities Are Governed By The

TCPA

A. Acacia “Initiated” Prohibited Telephone Calls To

Mr. Joffe’s Cellular Telephone

The TCPA is not limited to those who actually dial phone

numbers or make telephone calls. Rather, it includes those

who “initiate” a “telephone call” or “message” for the purpose

of engaging in prohibited telemarketing activities. 47 C.F.R.

§ 64.1200(a)(1)(iii). The TCPA does not define the word

“initiate.” However, its meaning cannot reasonably or

logically be interpreted to cover only the act of dialing

telephone numbers or making telephone calls.

A cardinal principle of statutory construction requires a

court to interpret a statute, whenever possible, so that no

clause, sentence, or word is rendered superfluous, void,

contradictory, or insignificant. E.g., Samsel v. Allstate Ins.

Co., 199 Ariz. 480, 483, 19 P.3d 621, 624 (App. 2001). To

interpret the statute as proscribing only the act of physically

dialing telephone numbers or making telephone calls would

render superfluous the text of the statute, which not only

prohibits any person from engaging in such activities, but

also from “initiating” them.

Another well known cannon of statutory construction is

that the plain meaning of words is to be given to a statute

when construing its terms. This familiar cannon applies to

the TCPA. Autoplex Leasing, Inc. v. Mfr., 16 S.W.2d 815,

817 (Tx. App. 2000); Zelma v. Total Remodeling, Inc., 756

A.2d 1091, 1093 (N.J. Super. 2000). While no Arizona court

has been asked to construe the TCPA, it is clear that an

Arizona court would apply the same principles of statutory

construction. See HCZ Const., Inc. v. First Franklin

Financial Corp., 199 Ariz. 361, 364, 18 P.3d 155, 158 (App.

2001) (words are given their ordinary meaning unless the

context of the statute requires otherwise). Indeed, the

9

preferred approach in Arizona is to apply the ordinary

meaning of the word found in well-respected dictionaries.

See Snyder v. Tucson Police Pub. Safety, 201 Ariz. 137, 140,

32 P.3d 420, 423 (applying definitions found in Webster’s

Third New Int’! Dictionary and Black’s Law Dictionary);

see also State v. James, 141 Ariz. 141, 144, 685 P.2d 1293,

1296 (applying the word “initiate” in the context of an

accused’s right to counsel in its “ordinary dictionary sense’’).

Webster’s defines “initiate” as “to begin, set going, or

originate: to initiate major social reforms.” Random House

Webster’s College Dictionary 678 (2nd ed. 1999). The

word “initiate” is defined in Black’s Law Dictionary as

“commence; start; originate; introduce; inchoate.” Black’s

Law Dictionary 705 (6th ed. 1990). “Initiation of

proceedings” is defined as: “[T]he person who sets the

machinery of the law in motion, whether he acts in his own

name or in that of a third person.” Restatement (Second) of

Torts § 674 cmt. A.

By sending an e-mail to a known 9 digit cell phone

number beginning with Area Code 602, Acacia placed into

motion a course of events which was certain, and known to

be certain, to result in a phone call. Under any reasonable

definition, Acacia “initiated” phone calls to Mr. Joffe’s cell

phone.

B. The Person Or Entity “On Whose Behalf”

Prohibited Calls Are Made Are Liable Under the

TCPA

The TCPA applies not only to the entity making or

“initiating” prohibited calls, but also to any entity “on whose

behalf” such calls are made. Worsham v. Nationwide Ins. Co.,

772 A.2d 868, 878 (Md. 2001) (citing 47 U.S.C. § 227(c)(5)

(providing private remedy for repeat calls “made by or on

behalf” of the same entity).

10

Acacia cannot reasonably deny that the promotional

phone calls Mr. Joffe received were made on its behalf.

Simply put, Acacia cannot escape liability under the TCPA

by asserting that it did not itself dial telephone numbers or

make phone calls.

C. The Ban On The Use Automatic Telephone

Dialing Systems To Make Calls To Cellular

Telephones Cannot Reasonably Be Construed To

Extend Only To Calls Which Involve “The

Transmission Of Voice Or Sound”

Acacia erroneously contends that a prohibited “call”

under the TCPA requires “the transmission of voice or

sound.” {Petition at 10] Acacia’s flawed interpretation

directly conflicts with FCC rules and regulations

implementing the TCPA. It is also an internally inconsistent

and demonstrably incorrect.

1. Acacia’s Position Is Contrary To FCC Rules

and Regulations Interpreting the TCPA

After the enactment of the CAN-SPAM Act, the FCC

issued an Order which provides that auto-dialed phone-to-

phone text messages (“SMS messages”) would continue to

be covered by the TCPA while SMS messages sent to cell

phones through the Internet would be covered by the CAN-

SPAM Act. In the Matter of Rules and Regulations

Implementing the Telephone Consumer Protection Act of

199], FCC Report and Order, 18 F.C.C.R. 14, | 165 (Jul. 3,

2003). If, as Acacia contends, the TCPA only applies to calls

which involve “the transmission of voice or sound,” SMS

messages would not be covered by the TCPA. As SMS

messages are covered by the TCPA, Acacia’s position cannot

possibly be correct.

For the same reason, Acacia’s contention that the Opinion

“interferes with Congress’s attempt to regulate carefully and

11

deliberately in the field of commercial communication”

[Petition at 8] is equally misplaced. It is this very same

“carefully” regulatory scheme that expressly defines a “call”

under the TCPA (in the TCPA Order discussed above) to

include pure text messages.

2. Acacia’s Unreasonable Interpretation Of The

TCPA

For many reasons, the construction of the word “cail”

cannot reasonably be limited to “voice” transmissions under

the TCPA. The drafter’s of the TCPA carefully chose to

use the word “voice” throughout the statute.* If the

- drafters wanted the word “call” to be limited to “voice”

communications, they could have, and presumably would

have, done so. Fernandez v. Brock, 840 F.2d 622, 632 (9th

Cir. 1988); In re Pudgie’s Development of NY, Inc., 239 B.R.

688, 695 (S.D.N.Y. 1999); Hirschey v. F.E.R.C., 760 F.2d

305, 308 (“Congress knew how to use words of limitation

when they were intended”); Grado v. Gross, 1984 WL 2467,

*6 (D. Mass. 1984) (“It is worth noting that Congress knew

how to use this word, in this statute, when it wished to.”);

United States v. Donovan, 429 U.S. 413, 445 (1977) (“Since

Congress demonstrably knew how to use other language

when it so chose, I would take Congress at its word and not

try to “improve” on its draftsmanship.”) (Brennan, J.,

concurring).

Moreover, Acacia’s interpretation of the TCPA

contravenes established principles of statutory construction

and is unreasonable. Consumer protection legislation, such

as the TCPA, are remedial statutes that “are broadly construed

to effectuate their purpose and to promote justice.” E.g.,

Parkhill v. Minnesota Mut. Life Ins. Co., 995 F. Supp. 983,

998 (D. Minn. 1998); Sellinger v. Freeway Mobile Home

Sales, Inc.. 110 Ariz. 573, 576, 521 P.2d 1119, 1122 (1974);

4. In fact, the word “voice” appears six times in the statute.

12

Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257, 262

(3rd Cir. 1975); Thomas v. Myers-Dickson Furniture Co., 479

F.2d 740, 748 (Sth Cir. 1973); cf Stainless Specialty Mfg. Co. v.

Industrial Com’n of Arizona, 144 Ariz. 12, 16, 695 P.2d 261,

265 (1985) (construing no-fault workers’ compensation statute

to give effect to its remedial purpose); see also Scarborough v.

Atlantic Coast Line R. Co., 178 F.2d 253, 258 (4th Cir. 1950)

(consumer protection statutes “should be liberally construed and

interpreted in a manner tending to discourage attempted evasions

by wrongdoers”); Hogar Agua v Vida En El Desierto, Inc., 36

F.3d 177, 182 (1st Cir. 1994) (exemptions from the requirements

of remedial statutes are to be construed narrowly to limit

exemption eligibility); Georgia Pub. Serv. Com’n v. ALLTEL

Georgia Communications Corp., 489 S.E.2d 350, 387 (Ga. App.

1997) (“Construction of a statute must square with common

sense and reasoning. ... We are not prone to condone the

intentional [or inadvertent but flagrant] circumvention of the

clear legislative purpose of protective statutes.”)

As stated above, a central purpose of the TCPA is to

protect consumers against unwanted telephone solicitations

and to prevent such solicitors from shifting advertising costs

to the consumer. To exempt text message solicitations sent

to cell phone users because they are not “voice”

communications, knowing that the consumer’s phone will

ring and that the consumer will be charged for the call, would

be to disregard the purpose of the statute.

Courts also avoid construing statutes in such as way as

to elevate form over substance, thus defeating the purpose

of the statute. See Gregory v. Helvering, 293 U.S. 465, 470

(1935) (rejecting statutory interpretation that “exalt[s] artifice

above reality and ... deprive[s] the statutory provision in

question of all serious purpose.”); Clark v. Rent-It-Corp.,

685 F.2d 245, 248 (8th Cir. 1982) (stating that the Truth In

Lending Act “is remedial in nature, and the substance rather

than the form of credit transactions should be examined in

13

cases arising under it”); Turner v. E-Z Check Cashing of

Cookeville, TN, Inc., 35 F. Supp.2d 1042, 1047 (M.D. Tenn.

1999) (Congress’ intent to preempt all equivalent state causes

of action should not be defeated by a triumph of form over

substance); Baker v. Citibank (South Dakota) N.A., 13

F. Supp.2d 1037, 1046 (S.D. Cal. 1998) (rejecting statutory

interpretation that “circumvents the statute’s obvious purpose

of protecting consumers). As one federal court put it, “[I]f it

walks like a duck, quacks like a duck, and looks like a duck,

then it’s a duck.” BMC Ind., Inc. v. Barth Ind., Inc., 160 F.3d

1322, 1337 (11th Cir. 1998).

To accept Acacia’s unreasonable interpretation would not

only elevate form over substance, but would also circumvent

the express legislative intent of Congress to protect

consumers from unwanted telephone solicitation and the cost-

shifting associated with such calls.

Further, with the advent of flat rate plans for cell phone

users, more consumers are using their cell phones not only

as their primary phones, but as their only ones. See Union

Ink Co., Inc. v. AT &T Corp., 801 A.2d 361 (N.J. Super. Ct.

2002). In fact, the United States Telecom Association reports

that “1 in 5 Americans consider their cell phones as their

primary phones.” David Cohen & Edward D. Kania, The

Future of the Communications Industry: New Products, New

Services, the Need For New Regulatory Paradigms, \3

Comm Law Conspectus 1, 4 (2005). In addition, “it is

estimated that 38% of Americans are considering making

wireless their only phone service.” Nicole 8. Stach, Wireless

Local Number Portability and Its Effect On Competition:

Can There Be Too Much of a Good Thing?, 12 Comm Law

Conspectus 223, 234 (2004) (quoting Barry M. Aarons, Does

Phone Competition Still Matter?, Consumers’ Res. Mag.,

Apr. 1, 2003, at 24 (describing the current status of telephony

in the United States). One of the primary purposes of the Act ~

— the right to be left alone in the home — would not be

14

furthered if the prohibition against the use of automatic

telephone dialing systems applied only to individuals lucky

enough to retain traditional land-based telephone service.

Moreover, courts often construe statutes broadly in order

to take into consideration modern advances in technology. It

is for this reason that the FCC issued an order stating, among

other things, that Congress could not have intended to allow

easy circumvention of the prohibitions of the TCPA due to

technological advances. In response to a request to clarify

whether “fax modem boards” are the functional equivalent

of “telephone facsimile machines,” the FCC stated:

the purpose of the requirement that facsimile

machines have the capability to identify

automatically senders or facsimile messages is to

ensure that the requirement that all facsimile

transmissions have identifying information is not

circumvented. Congress could not have intended to

allow easy circumvention of its prohibition on

facsimile advertisements by simply using a computer

to send a facsimile rather than a stand-alone facsimile

machine.

ee

The question of whether the definition of telephone

facsimile machine includes fax boards is a matter

of statutory interpretation that falls squarely within

the scope of this proceeding. The statute is

ambiguous with respect to this question and the

legislative history provides no guidance. The

manufacturing requirements in Section 227(d)(2)

does not specifically address manufacturing of fax

modem boards. Nevertheless, it is reasonable to

conclude that Congress would not apply different

manufacturing requirements to different devices

whose users are subject to the same technical

15

marking standards. Facsimile modem boards

manufacturers are clearly able to provide automatic

identification capability in their devices. There is

no public policy served by interpreting the statutory

ambiguity so as to exclude facsimile modem boards

from the manufacturing requirement. We should

resolve this issue in favor of a consistent approach

for similar devices.

10 FCC Red 12391, 78 Rad. Reg.2d (P&F) 1258 (1995)

(emphasis in original).

Cases in which courts have interpreted statutes broadly

to take into consideration technological advances are legion.

A notable example involves the admissibility of infrared

spectroscopy tests, where statutes make admissible only

chemical tests used to determine blood alcohol level. In the

seminal decision regarding the admissibility of such test, the

court held:

To adopt the defendant’s position [that only tests

using chemicals to analyze breath are “chemical

tests” within the statute] would be to bind

inflexibly the administration of justice to the level

of technology extant at the time of the enactment

of the statute while technological advances

thereafter would be unavailable to law

enforcement officials if they did not fall within

the terminology of a dated statute. If such a result

is not required, it ought not to be adopted.

State v. Squires, 426 S.E.2d 738, 740 (S.C. 1992) (quoting

People v. Jones, 461 N.Y.S.2d 962 (1983).

Interpreting statutes to take into account technological

advances are common in the telecommunications industry.

E.g., Minn. Microwave, 190 N.W.2d 661, 666 (Minn. 1971)

(“It is not disputed that the grant of jurisdiction made to the

16

commission in 1915 can properly take account of and regulate

changes on telephone service brought about by mere changes

in the state of the art of telephony.”); Digital Paging Sys.,

Inc. v. Pub. Serv. Comm’n, 360 N.Y.S.2d 931, 934-35 (App.

1974) (accepting the commission’s conclusion that “the

statutory definitions of ‘telephone line’ and ‘telephone

corporation’ were legislatively drafted in broad enough terms

to include technological advances in the telephonic

communications industry” and that paging services were a

type of telephonic communication); Radio-Fone, 193 N.W.2d

at 447 (determining that the holder of a government issued

certificate to provide “telephone service” authorizes the

holder to use “new and improved devices and methods for

telephonic communication” including non-wire mobile phone

service). Thus, the term “call” should be defined with the

view that Congress expected the TCPA to take into

consideration technological advancements in telephonic

communication, and not telephone services as conducted in

1991, the year the TCPA was enacted.

While text messaging technology may not have been widely

available when the TCPA was enacted in 1991, the drafters

wisely chose not to limit the reach of the statute to “calls” capable

of communicating “two-way communications” or “voice”

messages. Instead, Congress recognized that when a telephone

rings, a “call” has been made. Common sense examples include:

¢ Ifa phone rings but the person does not answer it, he

knows he received a call.

¢ If a person programs a phone to make a distinctive

sound when another person calls, and the called party

hears that distinctive sound when her phone rings,

she knows the other person called even though she

did not answer the phone.

¢ Ifa person agrees with another person that three rings

indicates that the other person has arrived, and his

17

phone rings three times at the appointed time, he

knows not only that the other person has arrived, but

also that he received a call.

¢ Ifa person makes numerous calls to another person

and that person does not answer the phone, she may

tell the other person the following day that, “I called

you on the telephone all night.”

None of these examples involve “two-way communica-

tions,” let alone a “voice” communications. Yet, a phone call

was unquestionably made in each example under the

ordinary meaning of the phrase “telephone call.” Adopting

Acacia’s strained interpretation would also lead to bizarre,

and clearly unintended, results. For example, if the defini-

tion of the word “call” required a “voice” communication,

telemarketers could barrage the deaf and hearing impaired

with uninvited telephone solicitations with impunity.°

3. Acacia’s Position Is Contrary To Decisional Law

A recent TCPA decision confirms that a prohibited call

does not require “two-way” communication, let alone a

“voice” communication . In /rvine v. Akron Beacon Journal,

770 N.E.2d 1105 (Ohio Ct. App. 2002), the Ohio court of

appeals held that hang-up calls that were placed by an

automated dialing machine for the sole purpose of detecting

recently connected telephone numbers so that the

telemarketer could generate a list of numbers to be called in

the future constituted a “call” under the TCPA. /d. at p. 1118.

5. For example, a “TDD” machine allows a deaf person to

conduct a telephone conversation with another person by typing

comments into a “relay” device. The caller types his message into

the TDD machine, and the message is then transferred across standard

telephone lines to the recipient’s TDD machine and displayed on

the recipient’s TDD video screen. The recipient sends response

messages in the same manner. Rendon v. Valleycrest Productions,

Litd., 2002 WL 1331541, *5 (11th Cir. 2002).

18

The Irvine court noted that the statue referred only to

the “initiation” of a prohibited call, not the completion of

one. 770 N.E.2d at 1118. As the court made clear, “[There is

no language in the statute requiring that a conversation take

place.” Jd. The court went even further, noting that “the mere

ringing of the phone could constitute a violation.” Jd.

According to the court,

when the telephone rings, the intrusion into the

home and the seizing of the telephone line is the

same. In fact, an argument can be made that when

the telephone rings and no one is on the other end,

the recipient is even more disturbed and

inconvenienced than if a sales person is at the

other end of the line.

Id.° Acacia’s interpretation of the word “call” cannot not

- survive the clear precedent established by /rving or the sound

reasoning the court employed to reach its legal conclusions.

The court of appeals was persuaded by the /rvine decision.

[Pet. App. lla - 12a]

4. The Court Of Appeals Correctly Ruled That

Acacia Made A “Call”

The court of appeals resorted to well-established rules

of statutory construction to determine its meaning. Because

the purpose of the statute is to regulate the “receipt automated

telephone calls,” the court of appeals concluded (for the

reasons set forth in the Opinion) that the word call means

“an attempt to communicate by telephone ... even if the

attempt does not present the potential for a two-way voice

intercommunication.” [Pet. App. 12a] As the court of appeals

correctly noted in the Opinion,

6. Of course, the /rvine court’s holding that a “call” does not

require any communication at all (let alone a “two-way voice

communication”) when a prohibited call is made by an automatic

dialing sys: « logically applies to all sections of the TCPA.

19

[I}t is the act of making a call, that is, of attempting

to communicate to a cellular telephone number

using certain equipment, that the TCPA prohibits.

Whether the call had the potential for a two-way

real time voice communication is irrelevant.

Accordingly, we hold an attempt to communicate

by telephone constitutes a call under the TCPA

even if the attempted communication does not

present the potential for two-way real time voice

communication.

[Pet. App. 12a]

V. The Issue Of Class Certification Is Not Before This

Court

Acacia’s concerns (more aptly fears) about class

certification and the potential size of any resulting judgment

[see Petition at 9] has absolutely nothing to do with any issue

before this Court. Class certification has not been decided

and no legitimate basis exists for citing this unresolved issue

as a reason why the Petition should be granted.

VI. The CAN-SPAM Act

The passage of the CAN-SPAM Act, 15 U.S.C. §§ 7701-

7713, twelve years after the TCPA went into effect does not

help Acacia.’ The United States Supreme Court has

7. The CAN-SPAM Act, which became effective on January 1,

2004, was enacted to protect consumers from unwanted commercial

e-mail, known colloquially as “spam.” It imposes a number of

restrictions on the sending of commercial e-mail, defined as messages

that have as their primary purpose a commercial advertiscment or a

promotion of a commercial product or service. The CAN-SPAM Act

also contains a section concerning unwanted messages to wireless

devices, such as cellular telephones. Specifically, § 14(b), codified

as 15 U.S.C. § 7712(b), directed the FCC to issue rules protecting

consumers from “unwanted mobile service commercial messages,”

(Cont'd)

20

repeatedly warned that “the views of a subsequent Congress

form a hazardous basis for inferring the intent of an earlier

one.” Consumer Prod. Safety Comm’n v. GTE Sylvania, 447

U.S. 102, 117 (1980). Further, settled principles of statutory

construction generally prevent deducing the intent behind

one Act of Congress from implications of a second act passed

years later. Penn Mutual Co. v. Lederer, 252 U.S. 523, 537-

538 (1920). The court of appeals Opinion emphasized both

of these legal propositions. [Pet. App. 22a] Because the lower

courts did not need to look outside of the TCPA to discern

its meaning, and because courts must apply the law in effect

at the time they renders their decisions, it would be

inappropriate to rely on subsequent legislation.

Moreover, as the court of appeals correctly observed,

neither the text of the TCPA nor its legislative history

demonstrates that Congress intended the CAN-SPAM Act,

and only the CAN-SPAM Act, to apply to unsolicited text

messages sent to cell phone users. [Pet. App. 21a] The court

of appeals articulated two reasons for its conclusion.

First, “Congress contemplated the CAN-SPAM Act and

the TCPA could have dual applicability. Section 14(a)

specifically states “‘[nJothing in this Act shall be interpreted

to preclude or override the applicability of [the TCPA]...’

15 U.S.C. § 7712(a).” [Pet. App. 21a] Second,

although certain members of Congress may have

thought the CAN-SPAM Act was the first

legislation to attack unwanted text messages sent

to wireless devices, their perceptions, stated years

after the passage of the TCPA, fail to demonstrate

(Cont’d)

or “MSCMs.” An MSCM is a “commercial electronic mail message

that is transmitted directly to a wireless device that is utilized by a

subscriber of commercial mobile service (as such term is defined in

{47 U.S.C. § 332(d)(1) (2004) in connection with such service.”

15 U.S.C. § 7712(d).

21

the TCPA was inapplicable to the text messages

Acacia delivered to Joffe. None of them mentioned

the TCPA and none of them expressed any opinion

about its applicability to text messages.

(Id. ]

VII. The TCPA’ Ban On The Use Of Automatic

Telephone Dialing Systems For Sending Text

Messages To Cell Phones Comports With The First

Amendment

According to Acacia, if the Court concludes that the text

messages Acacia sent to Mr. Joffe’s cell phone are covered

by the TCPA, then the statute infringes on its right to free

express under the First Amendment. No TCPA cases support

this proposition. However, the leading TCPA case on point

— Moser v. FCC, 46 F.3d 970 (9th Cir. 1994)— isdispositive

of the constitutional issues before the Court.

A. Moser Is Directly On Point and Controlling

In Moser, an association of automated telemarketers

brought an action against the Federal Communications

Commission (“FCC”), challenging the Constitutionality of

the provision of the TCPA prohibiting the use of automated

telephone dialing systems to deliver voice recorded messages.

Noting that because the TCPA does not require the FCC to

distinguish between commercial and noncommercial calls,

_ the court stated that the Act should be the statute should be

analyzed as a content-neutral time, place, and manner

restriction. /d. at 973. A time, place and manner restriction

will survive a First Amendment challenge so long as the

restrictions “are justified without reference to the content of

the restricted speech, that they are narrowly tailored to serve

a significant governmental interest, and that they leave open

ample alternative channels for communication of the

information.” Jd. at 973.

22

Notably, the Moser defendant conceded both the

government’s significant interest in residential privacy and

whether the TCPA’s curb on telemarketing advances that interest.

Moser, 46 F.3d at 974. The defendant did so for good reasons.

The Ninth Circuit independently noted that “Congress accurately

identified automated telemarketing calls as a threat to privacy.”

Id. at 974. According to the court, Congress had found that calls

using automated devices were “more of a nuisance and a greater

invasion of privacy than calls placed by ‘live’ persons’ because

such calls cannot interact with the customer except in

preprogrammed ways and do not allow the caller to feel the

frustration of the called party ...” /d. at 972 (quoting S. Rep.

No. 102-178, 102d Cong., Ist Sess. (1991)). The court also noted

that Congressional findings are entitled to a “great deal of

deference.” Concluding that the restrictions in the TCPA leave

open many alternative channels of communication, the court

held that the TCPA does not run afoul of the First Amendment.

Id.

The rationale of the Ninth Circuit court of appeals is well

reasoned and persuasive. Moreover, it represents the leading

case, precisely on point, on the issue of the constitutionality of

the ban against the use of automatic telephone dialing systems

to make prohibited phone calls.

B. The Relevant Portion Of The TCPA Is “Narrowly

Tailored” To Further An Important Government

Interest

1. The Protected Interest

Acacia conveniently ignores what is clearly the most

significant interest identified by Congress — the right to be

free from unwanted, invasive, and annoying telephone calls.

The concerns articulated by the drafters of the TCPA appearing

below are illustrative and compelling:

Unlike other communications media, the telephone

commands our instant attention. Junk mail can be

23

thrown away. Television commercials can be turned

off. The telephone demands to be answered.

137 Cong. Rec. $18317-01.

As shown above, Senator Hollings referred to this type

of intrusion as “telephone terrorism.” Mr. Justice Banders

described the “right to be let alone” as “the most

comprehensive * * * and the * * * (one) most valued by

civilized men.” Olmstead v. United States, 277 U.S. 438, 478,

(1928) (dissenting opinion). And, as Moser makes clear, the

government has a significant interest in protecting consumers

against this very type of privacy invasion.

The court of appeals also recognized that cell phones

have “permeated American life, and have replaced traditional

‘land line’ telephones in many homes and business.” [Pet.

App. 27a] Further describing the significant government

interest which the TCPA serves, the court stated that,

People keep their cellular phones on their person

at nearly all times: in pockets, purses, and attached

to belts. Unlike other modes of communication,

the telephone commands our instant attention.

While junk mail may be thrown away unopened,

and television commercials turned off, the

telephone demands to be answered. In protecting

the privacy of cellular telephone subscribers from

automated callas, the TCPA serves a significant

government interest.

[Pet. App. 27a]

Acacia further states that “the recipient of a text message

on a cellular telephone hardly feels called upon to engage in

any sort of conversation, or even to hear the speaker’s

message at all ...” [Petition at 16] This baseless contention

is similar to what Acacia urged with the court of appeals,

when it stated that “a text message [does not] necessarily

24

interfere even minimally with a person’s ability to be ‘left alone’

. .. [because] cellular telephone handsets can easily be set such

that no alert tone or vibration is triggered by the receipt of a text

message.” As demonstrated below, the interference with a

person’s right to be left alone is very severe.

Celi phones allow users to communicate through two-way

voice communication or text messages. People often need to

leave open channels of communication even when they are in

an environment where cell phone calls are not permitted. SMS

text messaging fulfils that need. The ability to switch to an “alert”

mode for incoming SMS text messages may signal an emergency

or other extremely urgent situation requiring the recipient’s

immediate attention. Being inundated with promotional

messages such as those sent by Acacia, even when a call phone

is switched to an alert mode with regard to the receipt of SMS

text message calls, substantially interferes with a person’s ability

to be left alone. The interference is arguably more severe because

the recipient is forced to see if the incoming call is truly an

emergency or just another spammer like Acacia delivering its

unwanted messages over and over again.

Contrary to Acacia’s contentions [Petition at 16-17], the

Supreme Court has recognized that “in the privacy of the home

* * * the individual’s right to be left alone plainly outweighs

the First Amendment right of the intruder.” FCC v. Pacifica

Found, 438 U.S. 726, 748 (1978) The case upheld an FCC ruling

that prohibited the daytime broadcast of indecent language.

2. The Speech Restriction Is “Narrowly Tailored”

Acacia erroneously asserts that Congress has “actually taken

a narrower and less speech-suppressing approach in the CAN-

Spam Act.” [Pet. at 17 (emphasis in original)] According to

Acacia, under the CAN-SPAM Act, cell phone users will be

able to regulate the receipt of wireless commercial text messages

by either giving prior consent to their receipt of such messages,

or electronically signaling their desire to stop receiving such

25

messages. [Pet. at 8] However, Acacia conveniently overlooks

the fact that the ban against using automatic telephone dialing

system to make calls to cell phones is not prohibited if the

telemarketer obtains the prior consent of the called party.

See 47 U.S.C. § 227(b){1)(A). And while this section of the

TCPA does not exempt calls if the recipient “signal[s] a desire

to stop receiving such messages,” there is no evidence that this

technology was available when the TCPA was enacted in 1991.

Thus, Acacia is wrong when it asserts that the CAN-SPAM Act

is less restrictive than the TCPA.

The court of appeals correctly concluded that, “[B]y

prohibiting only those calls from automatic dialing systems,

Congress narrowly tailored the TCPA to achieve this goal

[government interest can be served by some less-speech-

restricted alternative] in a way not substantially broader than

necessary.” [Pet. App. 28a]

C. The TCPA Leaves Open Alternative Channels Of

~ Communications

Finally, contrary to Acacia’s contention, the TCPA leaves

open many alternative channels of communications. As the

Moser court made clear,

[T]he restrictions in the Act leave open many

alternative channels of communication, including the

use of taped messages introduced by live speakers

or taped messages to which consumers have

consented, as well as all live solicitation calls. That

some companies prefer the cost and efficiency of

automated telemarketing does not prevent Congress

from restricting the practice.

46 F.3d at 975. The court of appeals reached the same conclusion.

[Pet. App. 28a]

26

CONCLUSION

Petitioners have not established any compelling reasons

for this Court to grant the Petition. Therefore, Respondent

respectfully requests that the Petition be denied.

Respectfully submitted,

STEVEN M. RUDNER

Counsel of Record

JOHN C. JOSEFSBERG

RupDNER LAw OFFICES

5001 Spring Valley Road

Suite 225E

Dallas, Texas 75224

Attorneys for Respondent