Satterfield v. Simon & Schuster, Inc.
| Decision Date | 19 June 2009 |
| Docket Number | No. 07-16356.,07-16356. |
| Citation | 569 F.3d 946 |
| Parties | Laci SATTERFIELD, individually, and on behalf of others similarly situated, Plaintiff-Appellant, v. SIMON & SCHUSTER, INC., a New York corporation;Ipsh!Net, a Delaware corporation akaIpsh, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John G. Jacobs and Bryan G. Kolton, The Jacobs Law Firm, Chtd., Chicago, IL; Jay Edelson and Myles McGuire, Kamber-Edelson LLC, Chicago, IL, for the plaintiff-appellant.
Peter L. Winik and Barry J. Blonien, Latham & Watkins LLP, Washington, DC, for the defendants-appellees.
Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding. D.C. No. CV-06-02893-CW.
Before: JOHN T. NOONAN, DAVID R. THOMPSON and N. RANDY SMITH, Circuit Judges.
Laci Satterfield, individually and on behalf of those similarly situated, appeals the district court's grant of summary judgment in favor of Simon & Schuster, Inc. and ipsh!net Inc. ("ipsh!").1 Satterfield alleges a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, arising after Satterfield received an unsolicited text message. We hold that there is a genuine issue of material fact concerning whether the equipment used by Simon & Schuster has the capacity to both (1) store or produce numbers to be called using a random or sequential number generator and (2) to dial such numbers. Giving deference to the Federal Communications Commission ("FCC"), see Chevron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we hold that it is reasonable to interpret "call" under the TCPA to include both voice calls and text messages. We also conclude that Simon & Schuster is not an affiliate or brand of Nextones and therefore Satterfield did not expressly consent to receive this text message from Simon & Schuster. Accordingly, we reverse the district court and remand.
Satterfield brought this action against Simon & Schuster for text messaging an advertisement to a cellular phone she owned in violation of the TCPA. Satterfield received this text message after she became a registered user of Nextones.com ("Nextones") (not a defendant in this case). Satterfield joined Nextones at the request of her minor son in order to receive a free ringtone. In order for Satterfield to get the free ringtone for her son, she had to fill out a form which read:
Nextones Member Sign Up
Sign up to become a registered user of Nextones today, for free! There is absolutely no cost involved in registering!
Satterfield then provided her son's initials and first three letters of his last name, her email address, zip code, phone number, and account information. The form also provided a check box that was followed by:
Yes! I would like to receive promotions from Nextones affiliates and brands. Please note, that by declining you may not be eligible for our FREE content.
By checking Submit, you agree that you have read and agreed to the Terms and Conditions.
Satterfield checked the box opposite the "Yes!" and pressed the submit button.
Subsequently, on January 18, 2006 at 12:30 a.m., Satterfield received a text message (on the phone registered with Nextones.com) from Simon & Schuster advertising its publication of a novel by Stephen King. The message stated:
"The next call you take may be your last . . . Join the Stephen King VIP Mobile Club at www.cellthebook.com. RplySTOP2OptOut. PwdbyNexton."
Simon & Schuster sent the text message as part of its promotional campaign for the Steven King novel Cell. Simon & Schuster outsourced the promotional campaign to ipsh!, who obtained a list of 100,000 individuals' cell phone numbers from Mobile Information Access Company (MIA). MIA was Nextones' exclusive agent for licensing the numbers of Nextones subscribers.
MIA provided ipsh! with electronic plain text or Excel files containing the list of 100,000 mobile numbers of Nextones subscribers. ipsh!'s programmers then imported the list into a database and entered the relevant information for the promotional messages into the database, where they were stored until they were programmed to be sent to the intended recipients. ipsh! then sent the file to mBlox, Inc., an "aggregator," or mobile transaction networking services company. mBlox handled the actual transmission of the text messages to the wireless carriers. After receiving some complaints about the promotional text message, mBlox refused to send out any more messages on ipsh!'s behalf.
Satterfield filed suit, alleging a violation of the TCPA for Simon & Schuster's transmission, of this unsolicited text message to her and other class members' cell phones, by an Automatic Telephone Dialing System ("ATDS"). Simon & Schuster moved for summary judgment, arguing that (1) it had not used an ATDS, (2) Satterfield had not received a "call" within the meaning of the TCPA, and (3) Satterfield had consented to the message and had not been charged for its receipt. The district court granted the summary judgment holding that (1) Simon & Schuster and ipsh! had not used an ATDS and (2) Satterfield had consented to receiving the message. The district court did not rule on Simon & Schuster's argument that a text message is not a "call" under the TCPA. Accordingly, judgment was entered for Simon & Schuster. Satterfield timely filed this appeal.
Summary judgment is appropriate when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the nonmoving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56.
The TCPA provides:
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is 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;
47 U.S.C. § 227(b)(1)(A)(iii).
(a) Definitions
As used in this section—
(1) The term "automatic telephone dialing system" means equipment which has the capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers
47 U.S.C. § 227(a)(1).
Reviewing the district court's grant of summary judgment de novo, Nolan v. Heald College, 551 F.3d 1148, 1153 (9th Cir.2009), we hold that the district court erred, because (A) there was a disputed issue of material fact as to whether the system Simon & Schuster used was an ATDS; (B) the text message was a "call" within the meaning of the TCPA; and (C) Satterfield did not consent to the receipt of such a message, because Simon & Schuster is not an affiliate or brand of Nextones.
The district court erred in holding that there was no genuine and disputed issue of material fact as to whether the system Simon & Schuster used was an ATDS. The district court focused its analysis on whether the equipment used by Simon & Schuster stored, produced, or called numbers "using a random or sequential number generator." The district court even noted that "the parties' dispute centers on the phrase `using a random or sequential number generator.'" With this as its focus, the district court held that "the equipment here does not store, produce or call randomly or sequentially generated telephone numbers, the Court grants summary judgment in the Defendants' favor: the equipment at issue is not an automatic telephone dialing system under the TCPA." We find that the district court focused its analysis on the wrong issue in its determination of what constitutes an ATDS.
In construing the provisions of a statute, we first look to the language of the statute to determine whether it has a plain meaning. McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir.2008). Id. (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (internal quotation marks omitted)). Reviewing this statute, we conclude that the statutory text is clear and unambiguous.
When evaluating the issue of whether equipment is an ATDS, the statute's clear language mandates that the focus must be on whether the equipment has the capacity "to store or produce telephone numbers to be called, using a random or sequential number generator." Accordingly, a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it. Since the district court did not focus its decision on this issue, we must then review the record to determine if summary judgment may issue. At the hearing, counsel for the parties suggested that the record was not clear regarding that issue. We agree.
Reviewing the record, we find that there is a genuine issue of material fact with regard to whether this equipment has the requisite capacity. Satterfield's expert, Randall A. Snyder, opined that this telephone system "stored telephone numbers to be called and subsequently dialed those numbers automatically and without human intervention . . . [t]he use of stored numbers, randomly generated numbers or sequentially generated numbers used to automatically originate calls is a technical difference without a perceived...
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